1 of 31 DOCUMENTS 

ZADOCK SASSCER vs. BENJAMIN WHITELY AND JAMES H. STONE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 98; 1856 Md. LEXIS 54 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Prince George's county.

Assumpsit by the appellees against the appellant, as endorser of a promissory note for $ 380, made by George Calvert, dated "Baltimore, February 16th, 1854," payable at six months after date, to the order of the defendant, and endorsed by him. Plea, non assumpsit.

Exception. The plaintiffs having proved the handwriting of the maker and endorser, offered in evidence the notarial protest as sufficient evidence of notice to the defendant to bind him in this action. This protest made on the 19th of August 1854, the day of the maturity of the note, by a notary public in the city of Baltimore, "at the request of Riggs, Benner & Co., bearers" thereof, states that "having ascertained that the maker of said promissory note has no residence or place of business in this city, I went to the court house, post office and exchange, and could find no person at either of said places who could pay the same for honor or on account of the maker of said note, wherefore I, the said notary, at the request aforesaid, have protested," &c., "for want of payment of said promissory note; thus done," &c.; "and on the same day I addressed written [**2]  notices to the endorsers," &c., "and informed them that it had not been paid, payment therefor having been demanded and refused, and that they would be responsible for the payment thereof; notice for Zadock Sasscer, endorser, I addressed to him, Baltimore, and put the same in the Baltimore post office, having made diligent inquiry at the court house, post office, and exchange, and not being able to find any person who could inform me where the said endorser resided, or of the post office nearest to his residence; notice for Whitely Bros. & Stone, I left at their place of business." The defendant then offered testimony and asked an instruction to the jury, both of which, with the ruling of the court below (CRAIN, J.) thereon, and the court's opinion and instruction, are fully stated in the opinion of this court. The defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A note was dated "Baltimore," and the maker and endorser both resided in "Prince George's county." The protest states that the notary, "having ascertained that the maker had no residence or place of business in the city of Baltimore," went "to the court house, exchange, and post office, and could find no person at either of said places who would pay the note for honor or on account of the maker," and then protested it for non-payment, and addressed written notice to the endorser, informing him "it had not been paid, payment therefor having been demanded and refused," and that "he would be held responsible for the payment thereof:" that the notice to the endorser was addressed to him at Baltimore, and put in the post office there, the notary "having made diligent inquiry at the court house, post office, and exchange, and not being able to find any person at any of said places who could inform him where the endorser resided, or the post office nearest his residence." HELD:

That in the absence of proof of any custom existing in the city of Baltimore, as to the usual mode of making demand and giving notice of non-payment, and that the holder knew that the maker and endorser did not reside in that city, this notice was sufficient to bind the endorser.

Where a note is dated at a particular place, and no other place is designated as that of its negotiation and payment, the presumption is, that the maker resides where the note is dated, and that he contemplates payment at that place.

But this is presumption only, and if he resides elsewhere within the State when the note falls due, and this is known to the holder, demand must be made at the maker's residence or place of business. 

COUNSEL:
Daniel C. Digges and John M. S. Causin for the appellant argued that the instruction of the court below was erroneous:

1st. Because the protest does not state either a demand on the maker or any other person for his honor, before protesting for non-payment. It states [**3]  that he had ascertained that the maker had no residence in Baltimore, but does not state that he made any inquiry as to the maker's place of residence.

2nd. That the evidence discloses a want of due diligence in searching for knowledge of the residence of the endorser; because it is conceded that if inquiry had been made of the business men, banking institutions, or commission merchants in that city, his place of residence could easily have been ascertained. There was no custom proven, in absence of knowledge of residence, to make inquiry for it at the places stated in the protest, to wit, the court house, exchange, and post office, and nothing in reason or commercial usage shown to limit the inquiry to these places. As to what must be done when the residence of the endorser is unknown, and what constitutes due diligence in such cases, see Story on Bills, secs. 235, 299, 328, 349, 352, 353, 360. Chitty on Bills, 453, 524, 525. 3 Kent's Com., 120. 2 Greenlf. on Ev., sec. 195. 5 Binney, 543, Fisher vs. Evans. Byles on Bills, 170. These authorities show that it was the duty of the notary to have enquired of the other parties to the note as to the residence of the defendant, and that [**4]  reasonable diligence must be used to obtain the knowledge, and that if the protest states that he inquired at a particular place and got no information, it is not sufficient.

3rd. That the statement in the protest of information to the endorser that payment of the note had been demanded and refused, does not dispense with the evidence of the character of the demand, as contained in the protest, and if the character of the demand stated in the protest was not such as was required by law and commercial usage, the defect was not cured by informing the endorser that such demand had been duly made upon, and payment refused by the maker. 3 Md. Rep., 257, Nailor vs. Bowie. Act of 1837, ch. 253.

C. C. Magruder for the appellees, argued:

1st. That the plaintiffs used reasonable diligence to ascertain the residence and post office of the defendant, and failed to do so, which is all the law and commercial usage require in such cases, and both dispense with further notice under such circumstances. Chitty on Bills, 452. Story on Prom. Notes, secs. 205, 236, 237, 264. 3 Kent's Com., 120. 4 Sergt. & Rawle, 480, Duncan vs. McCullough. 9 Wheat., 598, Magruder vs. Bank of Washington.  [**5]  It is said, inquiry should have been made of the other parties to the note. The plaintiffs were not the holders from whom the notary received the note; these were Riggs, Benner & Co., and they had no information of the residence of the parties, and, therefore, could impart none to the notary. But even if the plaintiffs were the holders, no case can be found which says that they are presumed to know the residence of the endorsers.

2nd. That the notary having failed to ascertain the residence or post office of the defendant, correctly deposited in the post office, in Baltimore, the notice of protest for non-payment, directed to the defendant, as the note was dated at that place, and no demand of payment was necessary to bind the defendant, under the circumstances of this case. Story on Bills, sec. 351, note. Story on Prom. Notes, sec. 236. 3 Kent's Com., 96. 1 Johns., 293, Chapman vs. Lipscombe, et al. 3 Do., 208, Boot, et al., vs. Franklin. 10 Pet., 572, Dickins vs. Beall. 4 How., 336, Harris vs. Robinson. 9 Do., 558, Lambert vs. Ghiselin. 2 Campbell, 461, Bateman vs. Joseph. 1 Watts & Sergt., 126, Lehman vs. Jones. 4 Metcalf, 203, Wood vs. Corl. 14 Louisiana Rep., 437, Delavigne [**6]  vs. Arnet. 9 Yerger, 253, Barr, Sterret & Co., vs. Marsh. 5 Wend., 587, Bank of Utica vs. Davidson. 2 Caines' Rep., 121, Stewart vs. Eden.

These authorities clearly show that Baltimore being the place of the date of the note, is, in the absence of proof of the place of residence, the place where inquiry should be made, and where it is presumed the parties intended payment to be made, and this being so, that reasonable diligence was used, and all the requirements of the law complied with.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*102]  LE GRAND, C. J., delivered the opinion of this court.
This was an action instituted by the appellees against the appellant, as endorser of a promissory note made by George Calvert, dated Baltimore, 16th of February 1854, and payable six months after date. The defendant pleaded the general issue. The note matured on the 19th of August 1854, and was placed in the hands of a notary to demand payment. The record states that the notary, having ascertained that the maker of the note had no residence in the city of Baltimore, and no place of business there, and being unable to ascertain where he resided,  [**7]  went to the post office, exchange, and court house, in the city of Baltimore, and inquired for the residence of the maker, and for the residence and post office of the appellant, and not being able to ascertain the residence or post office of either of said parties, protested the note for non-payment. A notice of protest was, on the same day, directed to the appellant, at Baltimore, and put in the post office of that place. There was no question made at the trial as to the making and endorsement of the note. The defendant gave evidence that for the last forty years he has resided near Upper Marlborough, Prince George's county, and that his post office, during all that time, has been at the last mentioned place. He also gave in evidence that, for the last thirty years, he has had extensive business transactions in the city of Baltimore, both with commission houses and banking institutions; and that the notary could have easily ascertained his post office and residence, had he made inquiries at the said banking institutions and commission houses. Upon the whole of the evidence the defendant prayed the court to instruct the jury that there was no sufficient evidence of notice to bind [**8]  the endorser in this action, and that the said notarial protest, so as aforesaid offered in evidence, was insufficient for that purpose; but the court overruled the prayer of the defendant's counsel, and permitted the said notarial protest to go to the jury, notwithstanding the evidence of the defendant, as sufficient evidence to bind the defendant, provided they should find that the said defendant endorsed said note after it was signed by the drawer. To which opinion the appellant excepted.

 [*103]  It is the correctness of this ruling of the circuit court that is now before us for review. The question presented by the prayer of the defendant is simply this: What kind of notice is required to bind an endorser who endorses a promissory note dated at a place different from the county of his residence, and other than that of the maker? The proof in the cause shows the note was dated "Baltimore," and that both the maker and endorser resided in Prince George's county, in this State. The notary went to the court house, exchange, and post office--having ascertained that the maker of said promissory note had no residence or place of business in the city--and "could find no [**9]  person at either of said places who would pay the same for honor or on account of the maker of said note." He protested the note for non-payment, and "addressed written notices to the said endorsers of the said promissory note, and informed them that it had not been paid, payment therefor having been demanded and refused, and that they would be held responsible for the payment thereof." The notice for the appellant was addressed to him at Baltimore, and put in the post office, the notary "having made diligent inquiry at the court house, post office, and exchange, and not being able to find any person at any of said places who could inform him where the endorser (the appellant) resided, or of the post office nearest to his residence."
There is no evidence in the record of any custom existing, in the city of Baltimore, in regard to the usual mode of making demand and giving notice of non-payment, and, therefore, this case must be determined on the generally recognized principles of commercial law, applicable to negotiable paper. What are these principles? It may be stated, as one of universal application, that when a note is dated at a particular place, and no other place designated [**10]  as that of its negotiation and payment, "the presumption is," says Chancellor Kent, 3 Vol. Com., page 96, "that the maker resides where the note is dated, and that he contemplated payment at that place." "But," continues he, "it is presumption only; and if the maker resides elsewhere within the State, where the note falls due, and that be known to the holder, demand must be made at the maker's 

 [*104]  place of residence," or place of business. This principle is recognized and adopted in Nailor vs. Bowie, 3 Md. 251, 257, and is conclusive of the case now before us. The note was dated "Baltimore," and the presumption was, therefore, that it was there payable; and although this presumption is not so absolute as to prevent contradiction, yet, in this case, no evidence was adduced on the part of the defendant to show that the "holder" of the note was aware that the maker and endorser did not reside in the city of Baltimore. As to diligence and thoroughness of inquiry, the notary says he made diligent inquiry, but could not find any one to give him information of the residence of the parties. It may not be gratuitous to remark, that when persons give and [**11]  endorse notes, they should take care to see they provide for the place of demand and of notice to the endorsers. By omitting this precaution, and in the absence of the knowledge of the holder to be shown in proof, the place of the date of the note is to be taken as the place of residence of the maker and endorser. See the case of the Bank of Columbia vs. Fitzhugh, 1 H. & G. 239.
Judgment affirmed. 

2 of 31 DOCUMENTS 

ROBERT J. BRENT and OUTERBRIDGE HORSEY, vs. THOMAS DAVIS and JOHN FERRY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 217; 1856 Md. LEXIS 19 

JUNE, 1856, Decided 

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

Assumpsit by the appellees, as partners in trade, against the appellants, to recover the amount of a judgment obtained on a promissory note placed in the hands of defendants, as attorneys at law, for collection. Plea, non assumpsit.

A bill of discovery was filed by the defendants and answered by the plaintiffs, and leave granted to take the testimony of Neale under a commission de bene esse, but neither the answers nor the deposition, if taken, were used at the trial.

Exception. The plaintiffs offered in evidence the receipt set out in the opinion of this court, signed by Horsey in the firm name, and proved that at its date defendants were associated in the practice of law in Baltimore city, where they had an office, and where also plaintiffs resided. They then offered the record of the judgment on the note referred to in the receipt against Kelly in Carroll county court. This record shows that the suit was brought on the 29th of March 1845, and the declaration filed by T. P. Scott, as the plaintiffs' attorney; that Abner Neale subsequently appeared with said Scott as plaintiffs' attorney; that the judgment was rendered [**2]  on the 6th of April 1846, and, on the 5th of April 1847, was ordered to be entered satisfied by said Neale as plaintiffs' attorney. Defendants admitted they had notice of demand made on them for the money claimed in this case before suit brought, and plaintiffs here rested their case.

The defendants then offered the following notice of copartnership, published in "The American," a newspaper of Baltimore city, of which Ferry, one of the plaintiffs, was at the time a subscriber, and which he daily received:

"Law Notice.

The undersigned have associated themselves together for the prosecution of their profession in the city of Baltimore, and will faithfully attend to any business confided to their charge. Robert J. Brent will continue, as heretofore, to attend the courts of Howard District, Charles county, Washington city, Alexandria, and the Supreme Court of the United States.

OUTERBRIDGE HORSEY.

ROBT. J. BRENT,

Office No. 14 Law Buildings, and St. Paul street."

They further proved by a number of witnesses, members of the Baltimore bar, that it was their usage and practice to take charge of claims to be collected in the counties where they did not practice,  [**3]  and sometimes to receipt for such claims; that in such cases it was their usage and practice to send such claims to some suitable and competent attorney practicing in the county where the debtor resided, and sometimes to put into the receipt to whom sent; that there was a diversity in the practice of witnesses, some of them charging commissions on the amount of the claim when received from the county attorney, and others not; that most of them informed their clients in such cases that they did not practice in such county, and would send the claim to some attorney practicing there, and some of them sometimes merely gave the name of an attorney, that the creditor might send his claim to him.

They further proved that neither of them ever was a member of the bar of Carroll county, or ever attended the court of that county, and that said Neale, at the date of his appearance to said suit, and ordering the judgment to be entered satisfied, was an attorney practicing in that court, of good reputation as a competent and upright attorney.

The plaintiffs then offered the following prayer:

If the jury find from the evidence that defendants received from the plaintiffs the note mentioned [**4]  in the receipt, and that the money due thereon was subsequently paid by the maker on a judgment recovered against him in Carroll county court, as shown by the record thereof; that Neale, who received the money, was the agent of defendants, and that before this suit demand was made on defendants for payment of the money so received, then plaintiffs are entitled to recover.

The defendants then offered the following prayers:

1st. That there is no evidence of any authority given by defendants to Neale to appear as attorney on record for the plaintiffs in the suit in Carroll county, or to charge the defendants by reason of the receipt of the money by said Neale.

2nd. If the jury find that the co-partnership between defendants did not extend to the collection of claims in Carroll county, and that the plaintiffs knew this fact, then there is no joint legal liability on the defendants for the collection of this claim, though the receipt was signed by Horsey in the partnership name, unless there is evidence in the case to satisfy the jury that Brent was privy and assenting to such use of that name.

3rd. That the appearance of Neale constituted him the lawful attorney of [**5]  the plaintiffs in that suit jointly with T. P. Scott, and, as such attorney, he was entitled to receive the money recovered by the judgment, and is responsible to the plaintiffs therefor, and they cannot recover in this suit.

4th. If the jury find from the evidence that defendants placed the note in the hands of Neale, an attorney of Carroll county court, for collection, and used ordinary care, diligence and prudence in selecting said Neale as a competent and faithful attorney, then the plaintiffs cannot recover for any default of Neale.

5th. If the jury believe from the evidence that the note was placed by the plaintiffs in the hands of defendants to be collected as stated in the receipt, that defendants were not members of the bar of Carroll county and did not practice law therein, and that this last fact was known to the plaintiffs at the time, and that when claims for collection or suit are placed in the hands of attorneys residing in Baltimore city, against persons residing in any county where such attorneys do not practice their profession, it is the usage of the profession, or members of the bar in said city, to forward such claims to members of the bar who practice [**6]  in the courts of the county where the suits must be brought, and that defendants, acting upon such usage, forwarded the note to Neale, an attorney in Carroll county, to be collected, and that in selecting Neale for this purpose, they exercised ordinary care, prudence and diligence, and selected an attorney of established character for integrity, fidelity, and competency in his profession for the discharge of the duty so confided to him, then the plaintiffs cannot recover in this action.

6th. That in order to entitle the plaintiffs to recover in this case, it is incumbent on them to satisfy the jury, by evidence in the cause, that Neale was employed by defendants, or one of them, as attorney to prosecute and collect the claim, and that there is no such evidence in this case, and plaintiffs are, therefore, not entitled to recover.

The court, (FRICK, J.,) granted the plaintiffs' prayer, and rejected all those of the defendants. To this ruling the defendants excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action for money had and received there can be no recovery, unless it be shown that the money was actually received by the defendant or his agent.

Where a law partnership is limited to the transaction of professional business in the city of Baltimore, and a party, with knowledge of this fact, places in the hands of one of the partners a note for collection in Carroll county, and takes a receipt therefor from him in the firm name, there is no joint responsibility unless the other partner assented or was privy to the transaction.

But if the other partner was privy to or assented to the transaction, and the firm sent the note to an attorney in Carroll county as their agent, for collection, and such agent received the money on the note and failed to account for it, then the firm is responsible to the owner of the note.  

COUNSEL:
Henry May and St. Geo. W. Teackle for the appellants, argued, that the prayer of the appellees was erroneously [**7]  granted:

1st. Because it assumes there was evidence to show the note receipted for was the joint property of the plaintiffs, whereas there was no such evidence. The receipt is simply of John Ferry, and there is no evidence of co-partnership between the appellees, or that the note originated in any partnership business. See the rule as stated in 2nd Greenlf. on Ev., sec. 478.

2nd. It submits to the jury to find that Neale was the agent of the defendants, when there is no evidence to establish such agency, but, consistently with the record, he may, and is presumed to, have been authorised by the clients to appear in the cause. Even if the law should presume, (which we do not admit,) that Mr. Scott, the first attorney appearing, was the agent of the defendants, it will certainly not presume that every attorney who subsequently appears is also such agent. It would rather presume that the clients had retained additional counsel. (7 H. & J., 275, Henck vs. Todhunter.) This is not an action on the case for negligence, but assumpsit for money had and received by the defendants, and in such a case the onus is on the plaintiffs to show the agency of Neale, as the proof is that he received [**8]  the money, and not the defendants. The question is simply, whether the jury can, upon no other evidence than the face of the Carroll county record, find that Neale was the agent of the defendants? That the agency must be proved in some way, see 2 Esp., 509, Matthews vs. Haydon. 2 Saund. on Pl. & Ev., 672. 11 Mod., 88, Thorold vs. Smith.

3rd. This prayer precludes the jury from considering the evidence of notice to the appellants of the fact that defendants' copartnership did not extend to Carroll county, and, therefore, that Mr. Horsey had no legal authority to bind his co-partner by any such receipt. It is proved that prior to the date of the receipt Ferry was a subscriber to "The American" newspaper, and is, therefore, chargeable with notice of defendants' advertisement in that paper. Story on Part., sec. 161. 1 Starkie on Ev., 166. 1 Starkie's Rep., 186, Leeson vs. Holt. Peake's N. P., 42, Gorham vs. Thompson. Ibid., 154, Graham vs. Hope. Notice to one partner is notice to all. Story on Part., sec. 107. Here there is evidence tending to show that the appellees, with full notice of the limited and local partnership between the appellants, took from one of the partners the receipt [**9]  in a case not authorised by the terms of the co-partnership as known to Ferry, and there is no evidence whatever of the privity or assent of the other partner to this unauthorised transaction. In such a case the co-partnership cannot be held liable to the party so dealing with one of the firm. 13 Penn. State Rep., 650, Porter vs. Kelly. Story on Part., secs. 110, 112, 128, 129, 130. 43 Eng. C. L. Rep., 754. 3 Ala. Rep., 187, Huntington vs. Branch Bank.

4th. The prayer precludes all inquiry as to the effect of usage in reference to the practice of attorneys in Baltimore city, in selecting the county attorney in similar cases. The defendants resided in Baltimore, and were not members of the bar of Carroll county. There is no evidence that they specially undertook personally to prosecute this claim in Carroll county. The receipt simply states that the claim was "to be collected." Now what are the duties of an attorney, and his obligation to his client? Some of the cases intimate that a fee must be paid, or promised to make an attorney liable. (3 Bibb., 517, Eccles vs. Stevenson. 2 Wash. (Va.) Rep., 203, Stephens vs. White.) But we are willing to concede that the liability exists,  [**10]  though in an inferior degree, where, as in this case, no compensation is given or promised. In such cases the agent is only liable for gross negligence. (Paley on Agency, 77, 78.) The general rule is, that an attorney is only liable for ordinary care and diligence, and good faith. (7 Shepley, 421, Wilson vs. Russ. 4 Burr., 2060, Pitt vs. Yalden. 5 Call., 118, Hawkins vs. Minor.) He must be diligent in the usual course of proceedings. (Wright, 466, Gallaher vs. Thompson.) In this case the usage is clearly proved by a number of witnesses, who testify, that, as attorneys in Baltimore, it is their practice to send such claims to county attorneys for collection. In our view of it the proof shows that this usage is a well established local usage, and is sufficiently general and contemporaneous with the date of the receipt in March 1845, to be relied on before the jury as evidence by which to construe and expound the undertaking of the appellants; that in all these particulars it satisfies the decisions in 6 H. & J., 408, Allegre vs. Ins. Co. 9 G. & J., 220, Powell vs. Bradlee. 1 H. & G., 239, Bank of Columbia vs. Fitzhugh. 2 Md. Rep., 241, Merchants Mutual Ins. Co. vs. Wilson. 6 Md. Rep.  [**11]  , 48, Foley & Woodside, vs. Mason. See, also, 1 Greenlf. on Ev., sec. 292. 2 Sumner, 567, The Schooner Reeside. 2 Douglas, 511, Noble vs. Kennoway. 1 Camp., 503, Vallance vs. Dewar. But the case of Jackson vs. The Union Bank, 6 H. & J., 149, is more strictly analogous to the present controversy than any yet cited. It was there held, that a party depositing in a Baltimore bank a draft payable in the District of Columbia, could not hold the Baltimore bank responsible for the laches of another bank in the District of Columbia, to which the draft had been sent according to the practice and usage of the Baltimore banks. The court in that case say, "the draft was payable in the District of Columbia, and the placing it with the defendants for collection, was equivalent to an agreement with them that it should be sent by them for that purpose to some bank in the District of Columbia."

Orville Horwitz and John Nelson for the appellees, argued:

1st. That the general proposition contained in the plaintiffs' prayer was correct, viz., that the money collected by Neale, the agent of the defendants, on the judgment, was in contemplation of law money collected by them, and that they are responsible [**12]  for its payment to the owners and holders of the note on which the same was collected by them as attorneys. 2 Blackf., 22, Pollard vs. Rowland. 12 Smedes & Mar., 669, Wilkinson vs. Griswold, et al. 2 Pike, 413, Cummins vs. McLain, et al.

2nd. That defendants' first prayer is erroneous:--1st. The note is delivered to and receipted for by them; suit is brought on it, and for two years before payment of the money Neale appears as the attorney of record in Carroll county. From whom must he have got the note? How was the possession transferred from Brent and Horsey to Neale? Either by delivery to act as their agent or by finding? In the first case they are clearly responsible; in the second case it was their duty to have watched the progress of the case during the three years it was on the docket in Carroll county, to have looked after the note committed to their charge, and to have interfered to protect the interest of their principals, if Neale was improperly of record. 2nd. Is not the fact of their failure to use the answers to the bill of discovery and the testimony of Neale before the court? and is it not competent to draw the inference from such failure, that if used they would [**13]  have shown directly that Neale was their agent, and that he received the note from them?

3rd. There is no evidence to sustain the defendants' second prayer. The evidence consists of the advertisement, and its construction is for the court. The manifest interpretation of this law notice is, that defendants had fixed their place of business--their office--in Baltimore city, and that they will faithfully attend to any business confided to their charge, not to business within the city only, but to any business. Suppose the debtor Kelly had resided in Baltimore county instead of Carroll? The second sentence of this advertisement holds out the additional inducement, that one of the defendants will himself attend in person to business before certain courts out of the city, negativing the idea that their business is to be confined to the city, and presenting the inference, that, except at the places named, they will transact any business confided to their charge through their agents.

4th. It is admitted that so far as the defendant to the suit in Carroll county is concerned, Neale was the attorney of the plaintiffs, and they were bound by his acts, and cannot therefore recover the [**14]  money a second time from Kelly, (7 H. & J., 275, Henck vs. Todhunter,) but as between plaintiffs and defendants the former have nothing to do with Neale. He is to them in that regard a stranger without privity, upon the familiar principle, Delegatus non potest delegare. 4 Pet., 396. 4 Miss., 522. An attorney is selected because of the confidence of the principal in his ability, integrity and responsibility, and the principal cannot be turned over to a sub-agent, where there is a breach of duty or a want of responsibility. 26 Wend., 485, Lyon vs. Jerome. The defendants' third prayer was therefore erroneous.

5th. That the duty undertaken by the defendants was not to select for the plaintiffs, with due care and diligence, a competent and faithful attorney of Carroll county, but to collect the money from Kelly, (3 Penn. Rep., 224, Riddle vs. Poorman, et al.,) and their fourth prayer was therefore incorrect.

6th. As to the fifth prayer we insist:--1st. That there is no evidence of any knowledge on the part of the plaintiffs that defendants were not members of the bar of Carroll county, and did not practice law there. The most that can be contended is, that there was knowledge,  [**15]  inferentially, that Brent did not in person attend regularly that court. 2nd. There is no evidence of any usage of any description. There is evidence of a diversity of practice among members of the bar as to the collection of claims out of the city. Some take such claims and some do not; some receipt for them and some do not; some send the claims to an attorney and some give the name of the attorney to the client; some charge commissions and some do not; some state to their client that they do not practice in the particular court and some do not. "In any case a usage to be admissible must be proved to be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform." (6 Md. Rep., 50, Foley & Woodside, vs. Mason.) Is there in this case any proof of certainty and uniformity? or that such usage was known to the plaintiffs? or that it was so general and well established, that knowledge and adoption might be presumed? Again, there can be no usage admissible in evidence to vary the terms of the contract where they are clear and manifest, (6 Md. Rep., 49,) and the undertaking by the receipt in this case is [**16]  clear and manifest.

7th. As to the sixth prayer we insist:--1st. It is not incumbent on the plaintiffs to prove, by direct evidence, that Neale was employed by the defendants. It having been shown by the receipt that the note was placed in their hands for collection, the onus of showing that their agency was revoked, and that the note came to the hands of another party by the intervention of the plaintiffs, is on the defendants. 2nd. As before stated, the inference is irresistible that Neale must have received the note from defendants, there being no evidence to show that it ever was in the hands of any other person after it was delivered to them for collection.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*226]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought to recover the amount of a judgment obtained on a promissory note, payable to the appellees by a certain Thomas G. Kelly, of Carroll county. The facts of the case, as shown at the trial below, may be thus stated:--The appellants were associated in copartnership, (as was proven by an advertisement to that effect in one of the newspapers published [**17]  in the city of Baltimore,) for the conducting of their business in the city of Baltimore as lawyers; that the appellee, Ferry, placed in the hands of the appellant, Horsey, the promissory note of Kelly, and the said Horsey gave him therefor the following receipt:
"March 27th, 1845.
Received of John Ferry, Esq., a note of Thomas G. Kelly, of Carroll county, dated 31st December 1842, for $ 350, one day after date--to be collected.
BRENT & HORSEY."
On the note so handed to Mr. Horsey suit was brought against the maker, and judgment obtained on the same in Carroll county court. The suit was brought by T. Parkin Scott, Esq., as the attorney of the payees. Subsequently, Abner Neale, Esq., appeared as their counsel. The money was obtained on the judgment, but never paid over to either the appellants or appellees in this case. This suit is brought on the theory, that the appellants having received the note for 

 [*227]  collection, are bound, in law, for the amount received by Neale. This is denied on various grounds:--First, that Horsey had no power to bind his partner to do any professional business beyond the limits of the city of Baltimore. Second, that inasmuch as neither [**18]  of the appellants practiced their profession in Carroll county, the reception of the note for collection only implied, on their part, an obligation to exercise due diligence in the selection of some attorney of that county who was generally esteemed and regarded as trustworthy and competent; and Thirdly, that it is the custom among the members of the profession in the city of Baltimore, when they do not practice in a particular county, or court, to transmit to an attorney who does so, any paper given to them for collection, and that such reception and transmission is not understood as subjecting them to any liability for the conduct of the person selected to prosecute the claim.
The appellants never received any fee or commission for their agency in the transaction. It was also proven that the appellee Ferry was a subscriber to and daily received the newspaper, the "Baltimore American," at the time the notice of the co-partnership between the appellants appeared in it as an advertisement.
On this state of facts the appellees submitted to the court below one prayer, which was granted; and the appellants six, which were all rejected. From this decision this appeal is taken.
We think [**19]  the court erred in granting the prayer of the plaintiff, and in rejecting the first, second and sixth prayers of the defendants.
This is not an action for negligence, but for money had and received, and there can be no recovery, unless it be shown that the defendants actually received it themselves, or that their agent did so. The prayer of the plaintiff concedes this by requiring the jury to find that Abner Neale was the agent of the defendants. The defect in the prayer is, that there is no evidence from which the jury could find such agency. There is not the slightest evidence in the record to show how, or by what authority he became associated with the case in 

 [*228]  Carroll county court. The suit was brought by T. Parkin Scott, Esq., and if any inference is to be drawn of the creation of an agency by the defendants, from the fact that the note was handed to one of them, and therefore to be accounted for, it would be that Mr. Scott, and not Mr. Neale, was the agent selected.
The first and sixth prayers of the defendants are but the converse of the proposition contained in the plaintiffs', and ought to have been granted.
The second prayer of the defendants ought also to have [**20]  been granted. It merely asserts, that if the partnership of the defendants was limited to the transaction of professional business within the limits of the city of Baltimore, and that the plaintiffs "were apprised of this fact," then there is no joint responsibility, unless the defendant Brent assented or was privy to the transaction. Had this prayer been granted, the jury might have found all the facts therein required to be found by the jury. The fifth prayer of the defendants was properly rejected. The evidence relied upon to sustain the usage we regard as insufficient. For the views of this court on the subject of usage, see Foley & Woodside, vs. Mason & Son, 6 Md. 37, 50. We abstain from an expression of opinion in regard to the other propositions, inasmuch as we regard them as mere abstractions in this case. The question here is, not whether Mr. Scott or Mr. Neale be responsible to the plaintiffs? but, whether the defendants are? It would be improper to decide on the responsibility of persons who are not parties before us.
Whilst we hold, that if the partnership was limited to the city of Baltimore, one partner had no right to bind his co-partner,  [**21]  without his consent, for matters not covered by the terms of their agreement, nevertheless, we hold it clear, that if there was privity or assent to a contract to do that not covered by the co-partnership, it binds all. If the jury should believe from the evidence that Mr. Horsey signed the receipt given in evidence, and that Mr. Brent ratified the act, and that Mr. Neale was their agent, and received the money and failed to account for it, then the defendants are responsible. That the 

 [*229]  plaintiffs may have an opportunity to supply the proof of the agency of Mr. Neale, if they can do so, we send the case back.
Judgment reversed and procedendo awarded. 

3 of 31 DOCUMENTS 

HIRAM KAUFFMAN vs. EMILY J. WALKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 229; 1856 Md. LEXIS 20 

JUNE, 1856, Decided 

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

A mortgage, under the act of 1833, ch. 181, of certain property in the city of Baltimore, was executed to the appellee, on the 22nd of April 1845, by Wm. H. and Wm. E. Hanson and wife, to secure a debt of $ 1000. On the 11th of March 1853, after forfeiture, the mortgagee filed her petition in the Superior Court for a decree for a sale under this act. This petition states the death of Wm. H. Hanson, and that the appellant had, by mesne assignments, become sole owner of the property, subject to the mortgage. On the same day she filed a statement of her claim, amounting to $ 1247.67, to which was annexed this affidavit:

"STATE OF MARYLAND, City of Baltimore, to wit:

On this 9th day of March 1853, before me, the subscriber, one of the justices of the peace of the State of Maryland, in and for the city of Baltimore aforesaid, personall, Emily J. Walker, and made oath according to law that the above account is just and true as stated, and that she has not received any part of the money stated to be due, or any security or satisfaction therefor, more than the credit is therein given for, and the mortgage and note herewith filed.  [**2]  

SAMUEL RINGGOLD."

The court, on the same day, passed a decree (under the act of 1833, ch. 181, as stated in the titling,) for a sale, "unless the mortgage debt, with interest and costs, be paid to the complainant within five days from this date." The trustee advertised the property thus:

"Trustee's Sale.--By virtue of a decree of the Superior Court of Baltimore city, sitting as a court of equity, the undersigned, as trustee, will offer for sale at public auction, on the premises, on Thursday, the 14th day of April next, at half-past 3 o'clock P. M., the following property, viz: All that lot or parcel of ground, with the improvements thereon, situate on the south side of Lombard street, in the city of Baltimore, at the distance of three hundred and ninety-one feet, or thereabouts, westerly from the south-west corner or intersection of Lombard and Canal streets, fronting on Lombard street about twenty-four feet, and extending back about one hundred feet to the midway between Lombard and Granby streets. The above lot is in fee, and is improved on Lombard street by a good and substantial three-story brick dwelling-house, with a brick back-building. Terms of sale," &c. This [**3]  description of the property is similar to that in the mortgage.

The property was sold in pursuance of this advertisement to Louis Wagner, for $ 1550, and the sale duly reported by the trustee. The appellant excepted to the ratification, because:

1st. No notice was given to him as provided by the decree.

2nd. The affidavit annexed to the claim of the mortgagee is not in due form of law, as contemplated by the act of 1833, ch. 181.

3rd. The sale is for less than half the value of the property.

4th. The decree and sale have been obtained by surprise, and without notice to the exceptant, who was ready and willing to pay the mortgage debt, or so much of it as was justly due.

5th. The sale was collusive between the purchaser and the agent of the complainant, and for the purpose of depriving the exceptant, the owner of the property, of his just and equitable right.

6th. And for other good and sufficient reasons.

An additional objection was afterwards filed: That the petition prays for relief under the act of 1833, ch. 181, and the decree was under the same act, and that the court, under this act, had no authority so to decree.

The purchaser and [**4]  complainant in their answers aver that the sale was bona fide and fairly made, and insist that it should be ratified. The appellant then filed in court a written offer to give bond, with sureties to be approved by the court, in any sum the court may require, that the property, if fairly exposed at public sale at the Exchange, after due notice and proper description in the advertisement, will sell for more than double the sum obtained at the sale made by the trustee.

Testimony for and against the exceptions was taken, by consent, before a special commissioner appointed for the purpose.

As to the value of the property, the witnesses on the part of the exceptant state that, in their opinion, it was worth $ 3000 or more; that the lot was worth about $ 3.50 per front foot, and the house about $ 2000. Those on the other side state that the house was old, out of repair and dilapidated; that the location is not desirable, and the character of the neighborhood would not recommend the property; that land in that neighborhood is worth $ 2 per foot; one of the witnesses states that he thinks $ 1500 was a fair price for the property, whilst another says he thinks the property sold very [**5]  low.

As to the advertisement, one of the witnesses for the exceptant, who had owned the property for nearly ten years, says he saw the advertisement before the sale and did not recognise the property, and that he would not now recognise it by reading the advertisement, because he does not know the distance of the property from Canal street; another states he would not recognise it as Hanson's old house for the same reason; other witnesses state the same thing, and one states that he would recognise it, because he is acquainted with the distances in that location. These witnesses also proved the house was in possession of the purchaser as tenant; that it had formerly been occupied for a long time by Hanson; that there was an old number on the house nearly obliterated; and that there are several three-story brick houses on Lombard, between Canal and Lloyd streets; that this house was at the corner of Lombard and Lloyd streets when the latter should be opened, and that if Lloyd street should be continued southerly it would give the lot one hundred feet front thereon; that there was a three feet alley on the east side of the premises used with the property, and that to settle a doubt [**6]  in regard to it, one of the former owners paid a sum of money for it to the claimant. On the other side, one witness says he thinks he would recognise the property from the advertisement, by its distance from Canal street and the size of the house, and another states that he read the advertisement and went to the sale in consequence of seeing it.

As to the sale, it was proved that the attendance was small--not more than ten or twelve persons; that it rained before and after, but very little during the sale; that there were four bidders; that it was conducted in the usual mode; that the trustee was present and did every thing he could to sell the property well; that Kauffman was not present, either in person or by agent.

There is proof that Kauffman knew of the mortgage and the amount due on it; that he employed counsel to contest its validity before the petition for the decree was filed; that such counsel wrote a note to the agent of the mortgagee in reference to the matter, stating that Kauffman was dissatisfied with the mortgage, and asking who was its owner, and for a statement of the mortgage claim, and he remained expecting a reply, but heard nothing from such agent [**7]  or his counsel until several days after the sale had been made, and that the proceedings and the sale were a surprise to him, he being on friendly terms with said agent, did not think proceedings would be instituted and a sale made without notifying him as counsel for Kauffman.

The court, (FRICK, J.,) delivered the following opinion in the case:

"The act of 1833, ch. 181, under which this proceeding is taken in equity, bears analogy to the entering a judgment at common law upon terms. Consent is given by the mortgagor to enter up a decree against him at any time, with liberty to enforce the payment by a sale, when by a statement, verified as the act directs, it is shown by the mortgagee that the claim or any part of it has matured, and still remains due and unsatisfied. This is all the preliminary proceeding and condition that is required to effect the sale. No other or further notice is contemplated by the act, and no particular form of verification is required. In this case the affidavit filed appears to me a substantial and sufficient compliance. As to any further notice to the mortgagor or his assignees, or in fact of any notice at all to any party, the act is entirely [**8]  silent. Payment at the time limited is the only means of averting the consequences of the debtor's own assent and appointment of the time of payment.

"The day further given, in analogy to the general chancery practice, is, therefore, only a stay of execution of the decree as further grace and time to the mortgagor, of which, he (being presumed to know when the debt in the first instance is due,) has no right to claim notice, at least not under the act, to which, stringent and grinding as it is, he has submitted himself by the terms of his contract. Harsh and summary as the whole proceeding often is, yet the mortgagor has by his own assent subjected himself to it, and his assignee with notice of the mortgage on record can stand in no better position. The court can extend no equity or notice to him which is cut off from his assignor by the terms of the contract. The proceeding is substantially ex-parte on the part of the mortgagee. The act nowhere, in any form, requires notice to any other party, and the creditor is only to see that he keeps strictly within the requirements of the act. If no notice, by the act, is required of him to the mortgagor or his assignee, then the objection [**9]  of surprise (which here is want of notice) can be of no avail. The purchaser of the equity of redemption stands in the place of the original mortgagor, who has waived all notice to which he would be entitled under any other chancery proceeding.

"No other objection is therefore left upon the exceptions but the inadequacy of the price. However manifest it may be from the testimony on this head taken altogether, that the property has not sold for its actual value, and that the proceeding was somewhat precipitated, and out of the view of some of the parties most interested, I dare not pronounce it so grossly inadequate as to authorise me, standing alone on that objection, to set aside the sale.

"I consider these and similar proceedings as properly under the act of 1833, ch. 181, and that the supplement of 1839, ch. 9, sec. 3, is to be construed as part of the act, the proceeding authorised by that third section having direct reference in its execution to the original act. The proceeding is necessarily, in the first instance, under the act of 1833, and the latter supplement in reference to the proceedings after the period limited for the payment of the debt, still directs the [**10]  decree to be passed under this act, the phraseology being, 'That the decree authorised by' the 2nd section of the act of 1833 may be passed as well before as after.

"In overruling the exceptions, I can only regret that these proceedings must be entertained in a court of chancery under an act of Assembly which, on its face, repudiates all equity principles."

From the order overruling the exceptions, and finally ratifying the sale passed in conformity with this opinion, the exceptant appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

A trustee's advertisement of the sale of a house and lot in the city of Baltimore, described the property as situated on "the south side of Lombard street, at the distance of 391 feet, or thereabouts, from the south-west corner or intersection of Lombard and Canal streets, fronting on Lombard street about 24 feet, and extending back about 100 feet, to the midway between Lombard and Granby streets, and is improved by a good and substantial three-story brick dwelling-house, with a brick back-building." HELD:

That this was an insufficient description of the property, and, in connection with the fact that it sold for much less than its value, will avoid the sale.

The advertisement is designed not only to let the public know what property is thus brought into market, but also to afford the owner an opportunity to redeem it from sale, or to prevent its being sacrificed.

Judicial sales will not be set aside for causes that the parties in interest might, with reasonable diligence, have obviated; every intendment will be made to support them.

But where the court can see that injustice will be inflicted, by the ratification of a sale, upon a party not in default by reason of the carelessness or omission of the trustee, the sale should not be ratified.

In such sales the court acts for all parties, through its officer, the trustee, and all parties look to the court for protection against the consequences of his acts or omissions.

A party claiming under the mortgagor is not entitled to notice of the proceedings, to obtain a decree, either under the act of 1833, ch. 181, or its supplement of 1839, ch. 9.  

COUNSEL:
Benj. C. Barroll and Alex. B. Hagner for the appellant, argued:

1st. That the acts of 1833, ch. 181, and 1839, ch. 9, are penal statutes, and, as such, ought to receive a strict construction: no sale should be made under their provisions except in conformity to their express terms. Dwarris on Statutes, 729, 743, 748, 750, 751, 754, 768. Md. Digest, 84, title Attachment.

2nd. That Kauffman was entitled to notice of the petition, which was filed after the mortgage debt was due under the act of 1839, ch. 9, sec. 3. In this particular it differs from the cases of Ing vs. Cromwell, 4 Md. Rep., 31, and Williams vs. Williams, 7 Gill, 302, which [**11]  were under the act of 1833, ch. 181, and the petitions were filed before the mortgage debt was due. The act of 1833 authorises the passing of a decree before the mortgage is due, and expressly says it may pass without notice. The act of 1839 says a decree may pass after the mortgage is due, but does not say that no notice is necessary. Unless the court see distinctly that notice is dispensed with under a strict construction of the act of 1839, they will not ignore the general rule of equity proceedings relating to defendants. The act of 1833 authorised the decree without notice, because the mortgagor knew when he signed the mortgage exactly at what time the decree would order the sale to be made, but this reason does not apply in cases under the act of 1839, and in this case Kauffman bought after the mortgage was due, and could not possibly know when the sale was to take place. The reason of the law therefore ceases, and "cessante ratione cessat lex." But again, the decree contemplated notice to Kauffman before the sale should be made, otherwise the provision allowing five days for the payment of the mortgage debt was useless. This court will not so construe a solemn decree as to reject [**12]  so important a part of it as unmeaning. If this was a proceeding under the act of 1785, ch. 72, the decree would be reversed, unless it gave a day to bring in the money, although the defendant may have been contesting the case for years. How much more important is it that the day should be given to the defendant in a case like the present? And if it is so important the day should be given, he certainly should have notice of it, in order to avail himself of it.

3rd. That the affidavit annexed to the claim is defective in many particulars:--1st. It was made and filed prior to the decree, whereas the act of 1833 requires it to be made as well as filed before the sale, and after the arrival of the period limited by the decree for the sale. 7 Gill, 304, Williams vs. Williams. 2nd. The statement was filed on the 11th of March 1853, and only pretends to show the amount due on the 7th of March, whereas it should have shown the amount "remaining due" at the time it was filed. 3rd. The account inserts charges for taxes, whereas no such right of tacking to the mortgage is allowed by the acts of Assembly. 5 Md. Rep., 195, Joynes vs. Wartman. 4th. The affidavit does not show that the affiant [**13]  appeared in person before the magistrate, whereas it should show upon its face that the requirements of the law have been fully complied with. 8 Md. Rep., 25, Warner vs. Fowler. 5th. It asserts that the mortgagee made oath "according to law." This is improper; it should say how the oath was made, whether on the Bible or otherwise, as authorised by the constitution. 2 H. & McH., 377, Evans vs. Bonner. It must always appear on the face of the affidavit which of the modes the affiant adopted. 6th. Again, if the court hold that the proceedings in this case do not embrace the act of 1839, because the petition prays relief specially under the act of 1833, then the affidavit is defective and void, because made before a justice of the peace. As additional authorities on these objections, see 5 Md. Rep., 99, Hays vs. Dorsey. Ibid., 161, Gatchell vs. Presstman. Dwarris on Statutes, 749. 1 H. & J., 136, Smoot vs. Bunbury. Ibid., 567, Dyson vs. West.

4th. That the property sold for an inadequate price. The law on this point we understand to be this: if the sale be in all respects regular, the court will not set it aside for inadequacy of price unless it be gross. But if there be other material [**14]  irregularities accompanying the sale, then mere inadequacy will weigh with the court as an auxiliary argument inducing it to set the sale aside. 11 G. & J., 1, Glenn vs. Clapp. 6 Gill, 236, Cohen vs. Wagner. 7 Do., 269, Johnson vs. Dorsey. Now we contend, 1st, that the proof here shows gross inadequacy of price. There cannot be the slightest doubt upon the evidence that the property did not bring half its value, and the offer of the appellant to insure double what it sold for, in case it be fairly brought into market, will have weight in determining this question, as it certifies the court that the mortgagee's interest will not be prejudiced by a resale. But, 2nd. The price was certainly inadequate, and this should cause the sale to be set aside when considered in connection with these irregularities, viz:--1st. The defective advertisement, not describing the property by the number of the house; not mentioning its being at the corner of Lloyd street; not mentioning the alley; not describing it so as to be recognised even by those who once owned it. (8 Gill, 260, Alexander vs. Walter.) In a large and compactly built city, to describe a lot as situate "three hundred and ninety-one feet,  [**15]  or thereabout," from any given point, is absurd, if the object be to give notice to the community of the specific property intended to be sold. It would almost have required a surveyor with his measuring rods to have found the property. Kauffman himself did not know of the sale until it was over. That the further opening of Lloyd street south of Lombard would give this lot one hundred feet front on the former street, is a fact so important to a judicious and proper sale, that no advertisement ought to omit to mention of it. 2nd. The small number of bidders present. 3rd. The inclement weather while the sale was proceeding in the open street.

5th. That the proceedings including the decree, and the sale under it, were a surprise upon Kauffman, the owner of the equity of redemption.

Charles F. Mayer for the appellee.

If essential, it might be contended that the act of 1833 is a remedial law, and not to be so strictly construed as to require more than a substantial conformity to provisions preliminary to a decree and sale. There is nothing in the act that derogates from equity the assent of the mortgagor to the decree being regarded as equivalent to a subpoena and answer.  [**16]  (7 Gill, 304, Williams vs. Williams.) The Supreme Court, in 4 Wheat., 235, Bank of Columbia vs. Okely, and 2 Pet., 671, Bank of Columbia vs. Sweeney, has, to a like assent to a special common law procedure, assigned the same virtue and merit. But we need not take this position to overcome the objections here interposed.

1st. As to the form of the affidavit: No particular form of affidavit is prescribed by the act. The statement of claim is required generally to be "verified by affidavit." Is not that done here even without the word "appears?" Omitting that word the affidavit puts the affiant "before" the justice, and she is there certified to have sworn to the truth of her account. It is to be read as if it had stated, "Before me, Emily J. Walker makes oath," &c. Can any one obliterating the unmeaning word "personal" read the affidavit to any other effect?

2nd. As to the time the affidavit was made: It was made before the sale, which is all that the act enjoins. It is only necessary that the court should have the act of selling justified by the precedent oath of the claimant, and that is here fulfilled. If between the affidavit and sale the debt is paid, the party may prevent [**17]  ratification by alleging and proving payment. There is nothing conclusive, therefore, in this affidavit, and hence no particular time for making it is limited, only that it be before the sale. But if there is any weight in this objection, we insist, that not being one of the exceptions, it was waived, and cannot therefore prevent a ratification. 4 G. & J., 479, Brown vs. Wallace. 5 Md. Rep., 161, Gatchell vs. Presstman.

3rd. As to notice: The act of 1839 is not only, on general principles, a part of the act of 1833, and, like all supplements, has its only operation as if embodied in the original act, but the decree referred to in the supplement is, by the supplement's very words, the decree which the act of 1833 allows or institutes. Why should notice be requisite for a decree that the supplement points to, which is put in pari ratione with the decree of the original act, when the decree limited by that act does not require notice? This court has decided over and over again, that in order to a valid decree under this system notice is not necessary. 5 Md. Rep., 99, Hays vs. Dorsey.

4th. If notice of the decree was not necessary there could, in law, be no surprise inflicted [**18]  upon Kauffman. By the cases cited on the other side, it will be seen that the court esteems that the parties interested are duly notified of the requirement to pay the debt, and are fully guarded in their rights by their knowledge of the time fixed by the mortgage for paying the claim, and by the warning, that in default of payment a decree may pass for a sale.

5th. As to the inadequacy of price: Is this alleged inadequacy made at all apparent, or at least is it so gross as to raise the inference of fraud or gross remissness in the trustee? (11 G. & J., 1, Glenn vs. Clapp.) In Cohen vs. Wagner, 6 Gill, 236, and Johnson vs. Dorsey, 7 Gill, 269, the disproportion between the sales and the estimated values of the property was quite as great as the extreme estimate here would create, and yet there it did not create the inference of fraud or faultiness. But a fair view of the evidence will, as we insist, show that there was no such inadequacy as insisted upon by the other side.

6th. But to help out this inadequacy fault is found with the advertisement as wanting in due identification of the property. We may here urge that this alleged defect is not made a subject of exception,  [**19]  and the objection is therefore not to be entertained. But what is there in the objection? The location of the property is defined by the street on which it binds, by the front it occupies, by the distance it is from another street, by the improvements that are on it. What better designation could be given? It is just that particularity of description and identification which, in 8 Gill, 261, is stated, would have sufficed to make a tax-sale valid so far as the point of description in the advertisement was concerned. The advertisement practically proved itself sufficient, for a number of persons were, in fact, instructed by it, were to attend to bid for the property. And any one looking toward purchases in that quarter of the city, would readily be informed of the actual property to be sold, by taking into view the distance from Canal street and the size of the house connected with the property. All was done that reasonably could have been effected to designate the property; for it appears the house had not a number that could be discerned and that could have served to identify it. Where is any witness adduced by the appellant who says he would have attended the sale, if the advertisement [**20]  had announced by local references what was to be sold? I throw out of the case the appellant's offer to insure, on a resale, a larger bid. Under our decisions biddings at judicial sales are not to be opened upon such offers.  

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

OPINIONBY:
TUCK 

OPINION:

 [*240]  TUCK, J., delivered the opinion of this court.
Judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated. Every intendment will be made to support them. But where the court can see that injustice will be inflicted by the ratification of a sale upon a party not in default, by reason of the carelessness or omission of its own officer, it should interfere to prevent it.
Several objections have been made to this sale, but we think it necessary to advert only to two, the others being insufficient. We are satisfied that the property was sold for much less than its value, if the opinions of the witnesses are to be relied on. And this result was probably caused by the imperfect manner in which the property was described in the notice of sale. The advertisement is designed not only to let the public [**21]  know what property is thus brought into market, but also to afford the owner an opportunity to redeem it from sale, or to prevent its being sacrificed. Alexander vs. Walter, 8 Gill 239. Some of the witnesses say, and among them one who had owned this property for ten years, that they would not have known, from this notice, what property was to be sold, unless they had known the number of feet from Canal street. City property is often described in this way, but a more particular description should be given, if the property be susceptible of it, as we think this was. Without intending to intimate any such purpose in the present case, for there is no evidence of the fact, it appears to us that if the purchaser, or others, had colluded with the trustee to make the property sell for less than its value, by keeping the owner in ignorance of the sale, they 

 [*241]  need have resorted to no form of notice, if he advertised at all, better calculated to produce that result, than the one under which this house and lot were sold. It is to prevent the possibility of injustice from such causes that notice of the sale is required, and that includes a description of the property,  [**22]  by which the owners and the public may be informed. If Kauffman had had notice of this decree, he might, if the advertisement had fallen under his eye, have conjectured what property the trustee proposed to sell. The knowledge of one fact might have put him on inquiry as to the other. But the proceeding was ex parte; he does not appear to have known even that the petition had been filed. To be sure, he was not entitled to notice in fact of these proceedings, but, in the absence of it, no inference of knowledge of the sale should be drawn, from this advertisement, to his prejudice. The court acts for all the parties, through its officer the trustee, and to it they look for protection against the consequences of his acts or omissions. We do not think it can be averred that the trustee did all that was reasonably required of him, in order to bring this property fairly into the market. This error on his part, and the inadequacy of price, are reasons for vacating the sale, though the latter objection alone, under the decisions of this court, might not, probably, be sufficient.  Glenn vs. Clapp, 11 G. & J., 1. Cohen vs. Wagner, 6 Gill 236. Johnson vs. Dorsey, 7 Gill, 269. [**23]  
The purchaser has an interest in maintaining the sale, but, as he buys subject to ratification by the court, he takes the risk of losing his bargain if it should turn out that sufficient objections exist to its final confirmation.
Order reversed and cause remanded.
This case was argued and decided at December term 1855, and during that term a motion was made for a re-argument, upon the ground that the decision that the advertisement was defective in its description of the property, would have the effect to disturb many titles. In support of this motion many advertisements, describing property in a similar mode, were filed. This motion was argued by Mayer & Alexander for 

 [*242]  the motion, and by Barroll & Hagner contra, and was overruled by the court at the present term.  

4 of 31 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. BARZILLAI MARRIOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 160; 1856 Md. LEXIS 15 

JUNE, 1856, Decided 

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

This was an action on the case, brought by the appellee against the appellants, to recover damages for an injury sustained by the plaintiff, in consequence of the negligence of the defendants in not preventing or removing an accumulation of ice on the footway on the north side of Fayette street, in the city of Baltimore, upon which the plaintiff slipped and fell down, and received injury, whereby he became lame and crippled for life. Plea, non cul.

Exception. The plaintiff offered in evidence the charter of the city of Baltimore, (act of 1796, ch. 68,) and its supplements, and various ordinances of the city, providing for the removal of snow and ice from the streets, and giving authority to the water company to lay pipes and introduce water into the city. (See pages 6, 7, 8 of Ord. of 1848.) The plaintiff then proved, that on the evening of the 19th of February 1849, after dark, whilst returning from church, he slipped and fell on a large sheet of slippery ice which completely covered the footway at the corner of Fayette and Calvert streets, and by the fall fractured his knee-cap in such manner as permanently to lame and cripple [**2]  him for life; that this ice had been formed in very cold weather, by the freezing of water running from certain hydrants attached to lots occupied by various individuals on the north side of Fayette street; that the water from these hydrants escaped through gutters in the foot-pavements, and in cold weather became frozen and obstructed the gutters, and then spread over the footway, forming a large quantity of ice, which rendered the passage of the footway dangerous to passers by; that this occurred in spells of cold weather; that at the time, and for several days before the accident, the ground in the city was not covered by snow or ice, but was covered by ice in several places where there was running water, and that the weather had been clear, cold and freezing, from the 12th of February to the date of the accident. He also proved, that for several winters past the accumulation of ice in this particular locality was regarded by the witnesses as a nuisance. One witness says he had complained to the water company about it, but they had not remedied it, and he had lodged complaints at the police office.

The defendants then proved by the officer whose duty it was to supervise the [**3]  contractors for cleaning streets, and had general supervision under the ordinances to preserve health and remove nuisances, that he had frequently directed the police to pay attention to this particular locality, and that there was as much attention paid to prevent ice accumulating on the side walk of that street as to any other point in the city, if not more; that, from the peculiar situation of the street, he believes it almost impracticable to prevent the accumulation of ice on the pavement; that unless the city was to employ an immense force, (far greater than she has,) ice will accumulate on the side walks throughout the city; that if the city officers were to watch that particular place only, it might be prevented from accumulating, but that no care could prevent ice forming on the foot-pavements, as it will sometimes form in a single night if the hydrants are allowed to run; that he has no knowledge of the condition of this street at the particular occasion when the accident occurred; it might have been in a dangerous condition, but he has no knowledge of it. They further proved, that persons living on this street had been frequently notified by the police to clear away the [**4]  ice on the pavements fronting their premises, and that the ice was occasioned by the leaking of the hydrants, some of which were in a decayed and defective condition, and by their being allowed to run. They also proved by another witness, who was in company with the plaintiff at the time, that he, the witness, passed the locality a few feet ahead of the plaintiff, when the latter fell, and that the night was cold and star-light, and that the lamp was burning at the corner where the accident occurred.

The plaintiff then offered the prayer which is set out in the opinion of this court. The defendant then offered the following prayers:

1st. If the jury find from the evidence that the mayor and city council of Baltimore did pass an ordinance, or ordinances, providing against any nuisance arising from the accumulation of ice or other obstructions on the side walks, the corporation is not liable for any injury which the plaintiff may have sustained, (if the jury shall so find,) from injuries arising from their neglect or violation by the owners of property binding on the street, upon the foot pavements of which the injury was sustained by the plaintiff.

2nd. (This prayer is [**5]  stated in the opinion of this court.)

3rd. If the jury find from the evidence that the plaintiff did not use reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him as given in evidence, then the plaintiff is not entitled to recover, even if they should also find that defendants were guilty of a want of ordinary care and diligence in not causing the ice to be removed from the pavement.

The court, (FRICK, J.,) granted the plaintiff's prayer, and also the 2nd and 3rd prayers of the defendants, but rejected their first. To the granting of the plaintiff's, and to the rejection of their first prayer, the defendants excepted. The verdict and judgment were in favor of the plaintiff for $ 500 damages, and the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The charter of the city of Baltimore provides, that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances." HELD:

That the effect of this provision is to make the city, like individuals and private corporations at common law, responsible for causing or not removing nuisances, to any person who has received special damage therefrom.

Where a statute confers power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words "power and authority," in such case, mean duty and obligation.

The mere passage of ordinances providing for the removal of snow and ice from streets, so as to prevent their accumulation from becoming a nuisance, is not a discharge of the obligation imposed by the charter: the city is bound to make vigorous efforts to enforce such ordinances, in order to bring itself within the saving of having used reasonable care and diligence.

A party suing to recover damages resulting to him from such nuisance, must show that he used reasonable and ordinary care and diligence to avoid the injury.

Where a party sustains an inconvenience or injury which is experienced in common with all citizens, then the source of complaint is a common nuisance, and the remedy must be by indictment.  

COUNSEL:
Grafton L. Dulany for the appellants, argued: That an action on the case, such as that brought in this cause, will not lie at common law against a political or municipal corporation, like that of the city of Baltimore, for the non-feasance or misfeasance of its officers, although injury should result therefrom to other persons; that the proper remedy in such cases is against the individual [**6]  whose act or negligence has occasioned the mischief. By the charter of the city, (act of 1796, ch. 68,) authority is given to the corporation to cleanse and repair streets, and remove nuisances. The public are interested in these privileges and franchises thus granted; they are not granted for private emolument. It is a power communicated, for the exercise of which the city authorities, acting for the public good, and not their own, are made the judges. By the 8th section of the act of 1796, ch. 68, the ordinances of the city authorities are made as obligatory upon all persons within the limits of the city, "to every intent and purpose, as the acts of the General Assembly of Maryland." The ordinance No. 35 of 1838, exercises the power to remove nuisances so far as they are occasioned by water from the hydrants. The ordinances No. 27 of 1847, and No. 3 of 1848, show the care with which the city has exercised the power conferred by the charter to prevent and remove nuisances. Where then is the negligence of the city? The party injured is not without his remedy, for each one of the owners of these hydrants who permits it to overflow is responsible under the ordinances, and for his neglect [**7]  the party injured may sue him. The corporation has no fund out of which the damages could be paid; if paid at all they must come out of the public, and in such a case salus populi est suprema lex. It is more fit that the individuals should be responsible who neglect their duty under the ordinances. If the city authorities have the right to legislate over the subject of nuisances, their action cannot be ministerial, and there is no power to review their action thereon. You might just as well say that the State is responsible for every murder or act of violence committed within its limits, because it is the duty of the State to protect the citizens against such acts. If the city is responsible at all in such cases, it is responsible in every case for non-feasance or misfeasance, just as a jury may think in each case, and if the doctrine of responsibility is to be carried to this extent the consequences would be monstrous. For every case of sickness occasioned by an epidemic the city would be responsible, if a jury might think the city authorities had not properly exercised the power to preserve the health of the city. I admit that the city is responsible, like an individual, in all cases [**8]  where she acts as the owner of property, as in the case of wharfs, &c., and the cases cited on the other side are all cases of this character. But those are different cases from the present, where the city is sovereign within its limits, having authority to legislate over the subject by which the injury was occasioned, and has exercised this sovereign legislative power for the public good. In support of these views, and as exempting the city from responsibility in such an action as this, I refer to 17 How., 161, City of Providence vs. Clapp; the manuscript opinion of Chief Justice Taney, in the case of Hughes vs. The Mayor & City Council of Baltimore, in the Circuit Court of the United States. 1 Hill, 545, Martin vs. Mayor, &c., of Brooklyn, 7 Mass., 187, Riddle vs. Proprietors of Locks & Canals on Merrimack River. 9 Do., 237, Mower vs. Inhabitants of Leicester. 4 Pick., 149, Jones vs. Inhabitants of Lancaster. 3 Greenlf., 445, Haskell vs. Inhabitants of Knox. 2 Term Rep., 669, Russell vs. Men of Devon; and to the case of Barron vs. The Mayor & City Council of Baltimore, reported in 7 Pet., 243.

Vivian Brent and Charles E. Phelps for the appellee, argued:

1st. That the ancient [**9]  doctrine, as laid down in the early text books, that a corporation could not be sued civiliter for torts, is now entirely exploded, and corporations have been held liable for the acts and omissions of their agents in every form of action sounding in tort, and municipal corporations constitute no exception to this principle. Cowp., 86, Mayor of Lynn vs. Turner. 5 Bing., 91, Henley vs. Mayor of Lyme, and the same case in King's Bench, in 3 Barn. & Adol., 77, and, on appeal, in the House of Lords, in 1 Bing. N. C., 222. 12 Pick., 184, Baker vs. The City of Boston, and 19 Do., 511. 3 Hill, 531, Bailey vs. The Mayor, &c., of New York, and the same case in error, 2 Denio, 433. 3 Hill, 612, Mayor, &c., of New York vs. Furze. 1 Sandf., 222, Delmonico vs. The Mayor, &c., of New York. 3 Comst., 464, Rochester White Lead Co. vs. City of Rochester. 1 Selden, 369, Lloyd vs. The Mayor, &c., of New York. 3 Do., 493, City of Buffalo vs. Holloway. 1 Duer, 452, 495, Davis vs. The Mayor, &c., of New York. 4 Ohio Rep., 500, Goodloe vs. Cincinnati. Wright, 417, Paine vs. Commissioners of Portage County. 10 Ohio, 159, Rhodes vs. City of Cleveland. 15 Do., 474, M'Combs vs. Town Council of Akron. 1 Indiana [**10]  Rep., 98, Ross vs. City of Madison. 5 Watts & Serg., 545, Dean vs. New Milford. 10 Harris, 54, City of Pittsburg vs. Grier. Ibid., 384, City of Erie vs. Schwingle. 9 Humph., 757, City of Memphis vs. Lasser. 1 Sandf., 27, Boyland vs. Mayor, &c., of New York. Ibid., 465. Levy vs. Mayor, &c., of New York.

There is nothing in the character of this defendant, either belonging to it in common with corporations in general, or peculiar to the nature of municipal corporations, whether arising from any supposed sovereignty or otherwise, which exempts it prima facie from liability to actions ex delicto for the negligence, whether of misfeasance or of non-feasance, of itself or its servants. Sovereignty cannot be predicated of a municipal corporation in that large, general, sense in which it is said to exempt the possessor of it from civil liability, nor indeed in any strict sense whatever. The State of Maryland is sovereign, inasmuch as it represents the majesty of the people, embodies their law,--creative power--and is above the reach of law, simply because the creature cannot place itself above the creator. Sovereignty is the ultimate, absolute, uncontrollable power of government; of making [**11]  laws and enforcing obedience to them, which, in all societies, must be vested somewhere. By the democratic and republican theory this sovereignty is ascribed to the people of the State. The expression of the people's will is their constitution. By that instrument the people resolve their sovereignty into the three grand elements of which it is composed, define with precision their respective limits, and distribute them appropriately among the legislative, the executive, and the judicial departments. Having done this the people have delegated their whole sovereignty. Whatever attributes or prerogatives of sovereignty have not been expressly delegated, slumber in abeyance. No reserved prerogatives exist in the people capable of a practical exercise, in the sense in which the people of the several States possess reserved rights in reference to the Federal Government. One great reserved right the people do indeed retain, simply because it is inalienable:--the right of recalling their delegated powers and parcelling out their authority anew.

Much less does any original reserved sovereignty exist in any portion of the people, or in any collection of citizens. Nor does any number of [**12]  citizens, however large, any more than an individual citizen, possess sovereignty of and in themselves. Sovereignty cannot be apportioned. It grows spontaneously out of the people at large, in their aggregate capacity, and is expressed by the will of the majority of the whole people. Each citizen contributes, whether he wills it or not, whether conscious of it or not, his infinitesimal portion of the sovereignty of the State. No citizen, therefore, can detect or distinguish out of the common mass that portion of the common sovereignty that has emanated from himself, or appropriate it, for the purpose of founding upon it any exclusive or peculiar personal prerogative. That would be to unravel the web of society and resolve it into its original elements. "If one man has this right every man has, and therefore no man." If no individual citizen can set up such a claim, how can any aggregation of citizens (not claiming to represent the whole people) set it up with any better show of reason? How large a number is requisite? If the inhabitants of a county, for instance, may set up this claim, why not the inhabitants of an election district? why not those of a village? why not the members [**13]  of a family? If the citizens of Baltimore do possess, and may avail themselves of, original sovereignty, why not as well the citizens of a particular ward?

But it is said the inhabitants of Baltimore city are incorporated for political purposes, and have conferred upon them, by their charter, legislative powers. Here, it is to be observed, the ground changes entirely. The argument shifts. The city descends from the lofty ground of original sovereignty, representing the apportioned majesty of a portion of the people, and contents itself with referring us to the expressed will of the State Legislature, to which we are all alike subject. It is essential to keep this distinction constantly in view. The whole alleged obscurity which surrounds this subject arises from confounding the supposed rights and immunities inherent in the collective inhabitants of the city, regarded as an aggregation of natural persons, with the franchises granted to the corporation as an artificial person, the creature of the Legislature, existing only in "intendment and consideration of the law." In this view the defendant upon this record, to wit, the corporation called "The Mayor & City Council of Baltimore,  [**14]  " is just as distinct from the collective inhabitants of the city of Baltimore, as from the collective inhabitants of any other city in the United States. (Bligh vs. Brent, 2 Younge & Coll., 268.) "If the whole body of members existing at any given time be collected together within our view, we do not see the corporation, although we see all the existing corporators." (Grant on Corp., 2.)

It is admitted, therefore, that this corporation is the creature of the legislature; that it is just what the legislature makes it and nothing more; that it may exercise just such powers, and enjoy just such immunities, as are expressly conferred upon it, or which result from necessary intendment and implication, and no more. Then the question arises, has this corporation been clothed with any of the attributes of sovereignty, in the sense claimed, of an immunity and exemption from civil liability, for its tortious acts of misfeasance or of non-feasance: 1st, by express terms? or 2nd, by necessary implication?

No clause in the charter or its supplements has been referred to, in which it is pretended that this delegated sovereignty has been expressly or in terms conferred. On the contrary [**15]  the original charter of 1796, ch. 68, declares precisely to the opposite effect, when in the 2nd section it enacts, that this defendant, "by their corporate name, may sue and be sued, &c., and do all other acts as natural persons." But the defendant denies our right to call it to account for a neglect of its duty, on the ground that the legislature has given it "power and authority to enact and pass all laws and ordinances necessary" for the furtherance of the objects, and the performance of the duties, for which it was created. Legislation, it is contended, is a function and an attribute of sovereignty; whenever, therefore, the power of legislation is granted, there is granted along with it an exemption from civil liability.

This argument proves too much. The power to pass by-laws or ordinances is frequently conferred by the legislature upon corporations, both public and private. And the by-laws of railroad corporations, a bank, or a college, are just as binding upon the individual corporations, and all others who subject themselves to their operation, within the scope of their respective charters, and for the legitimate objects of their creation, as are the by-laws or ordinances [**16]  of the corporation of the city of Baltimore upon its citizens, who are the corporators, and upon all others who come within the sphere of their influence. If this defendant, therefore, as respects its legislative powers, is sovereign, it follows that bank and railroad corporations, &c., are also sovereign as respects their legislative powers; that it is a mistake to suppose there is any peculiar significance in this grant of legislative power, as it is nothing more than the corporation would have had independent of any express grant, and by the general rule of law, applicable to all corporations. The power to make by-laws is incident to all corporations by the common law, as is also the power to enforce them by fines and penalties. (2 Kent's Com., 296.) The object of the legislature in this case, as well as in other similar cases, was to create a corporation with certain defined and limited powers, and it proceeds to specify, with distinctness, those subjects which are to come within the scope of its authority for the purpose of excluding all others.

But it is said there is a distinction between a private corporation and a corporation created for public, political and municipal [**17]  purposes. This is simply begging the question and losing sight of the well recognized distinction before adverted to, between the inhabitants of the city, as an aggregation of natural persons, and the technical, artificial person, the creature of the legislature, which is the defendant on this record. The whole fallacy lies in the assumption, that the by-laws or ordinances of the corporation of Baltimore city have the force or dignity of law in any higher or more significant sense than the by-laws or ordinances of any other creature of the legislature. And this assumption is the offspring of the vague and loose ideas attached to the word "law." Law is the emanation of the supreme sovereign power of the State. By that law this corporation was called into existence, and the use of the expression, "law," in connection with the enactments of this corporation, is to be taken in the same restricted and subordinate sense in which it is applied to the enactments of any other corporation which is equally a creation of that law. The mere power to legislate, therefore, within certain limits and for certain specified objects, whether of a public or private nature, does not, of itself, raise a [**18]  corporation above the reach of remedial justice.

There yet remains one ground only upon which the non-liability of the defendant may be urged, and that is, that with reference to the particular duty to repair its streets and abate nuisances the city has vested in it the largest discretionary powers, of the exercise of which it is the sole judge, and for the neglect to exercise which it cannot be called to account. In using this argument the defendant lays aside the stilts of sovereignty finally and forever. Discretionary powers are an entirely distinct matter from sovereign prerogatives, and may be predicated of corporations, whether public or private, or even of natural persons in certain official capacities. The argument, therefore, at this stage, opens to us the admission, that if we can show from a consideration of the various charters which have been passed upon this subject, that the intention of the legislature was to impose upon this defendant a ministerial duty, and not merely to confer discretionary powers, that then the defendant may be liable for a neglect of such duty. This question we will consider hereafter.

2nd. Where a duty is imposed by law, such as the [**19]  duty to repair highways, and as included therein, the duty to clear the highway of nuisance, the party upon whom such obligation lies, whether an individual or corporation, is liable to indictment for a neglect of such duty, or to a special action on the case, at the suit of an individual who sustains special damage by such neglect. See the cases above cited in Cowp., 86; 5 Bing., 91; 3 Hill, 612; 5 Watts & Serg., 545; 10 Harris, 54; Ibid., 384, and also 7 Mass., 169, Riddle vs. The Proprietors of Lisbon Bridge. 2 Shepley, 203, Watson vs. The Proprietors, &c. 11 Wend., 539, The People vs. The Corporation of Albany.

3rd. Within the principles laid down it was the duty of the defendant to prevent or remove nuisances and obstructions, and to keep the streets and footways and necessary drains in repair. 1st. There must be a liability to repair existing somewhere. The common law of England placed that liability upon the inhabitants of the Parish, and for a neglect they were punishable by indictment. A similar application of the principle in this country would make it, even in the absence of statutes, the duty of city and county corporations to repair the highways or streets within [**20]  their respective limits, they being the only bodies that have the requisite power and funds. 2nd. But we are not left to reason from general principles. We do not place the liability of the defendant upon the common law, but upon the various statutes and charters which have imposed it in express terms. By the act of 1782, ch. 17, entitled, "An act for the more effectual paving the streets of Baltimore Town," provision is made for the election of "special commissioners," and they are made a body corporate. Special taxes are designated and appropriated "towards paving, cleansing and keeping in repair the streets, lanes and alleys, within the said Town." The fund arising from these taxes is placed under the special commissioners together with a further fund arising from fines and forfeitures, and it is called a "permanent fund to keep in repair the streets." They are invested with general powers to pave and keep clear the streets, "and to agree on, execute and perform, every other act, matter or thing which to them shall appear necessary for the fulfilment of said act." They are directed to employ "proper and capable persons" as scavengers to clean the streets. In case of default of the [**21]  owners to "pave and repair the footways" in front of their houses, "the said special commissioners shall make, amend and repair the same out of the public moneys by this act directed to be raised." The said special commissioners are hereby further authorised and empowered to remove or cause to be removed all manner of obstructions to the passage through the said streets, lanes and alleys, which they shall find remaining in the same an unnecessary length of time. By the act of 1796, ch. 68, incorporating Baltimore city, the powers of the special commissioners are vested in the corporation of Baltimore city, and provides that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city and to prevent and remove nuisances." Now apply the well known principle, that where a statute confers a power upon a corporation, to be exercised for the benefit of the public or of third parties, that exercise is not discretionary but imperative. "Power" in such cases means duty, and "authority," obligation. Dwarris on Statutes, 712. 2 Salk., 609, Rex vs. Barlow. Skinner, 370, Rex vs. Inhabitants of Derby. 1 Vernon, 152, Blackwell's [**22]  Case. 11 Wend., 539, The People vs. Albany. 3 Hill, 612, Furze vs. New York. 9 How., 248, Mason vs. Fearson. Besides, the imposition of the duty is accompanied by the grant of a special fund to be appropriated to the purpose, and this is, of itself, sufficient to charge the corporation. 5 Bing., 108. 10 Harris, 64, 65. The power to repair streets and remove obstructions therefrom, resolves itself, therefore, into a plain, direct and executive duty, not to be discharged by legislation merely, not to be satisfied by the passing of ordinances and the appointment of agents, but requiring ministerial action. 3 Hill, 618. 10 Harris, 65. The plaintiff does not seek to charge the defendant with an omission to carry into effect its own ordinances, but with a neglect to perform the duties enjoined upon it by its charter. Nor can the defendant, on the other hand, screen itself from liability behind its own ordinances, which it passed for its own indemnity. The corporation cannot, by legislation, shift off upon third parties, an obligation imposed upon and accepted by itself. The ordinances in question were read to the jury, not as prescribing a rule binding on the city, but as evidence of what [**23]  was reasonably necessary to be done by the city, in order to the proper performance of its charter duties, in the matter of repairing streets and drains, and removing nuisances, and thus to determine whether due diligence required the defendant to remove the ice from the pavement, or prevent its accumulation. 17 How., 161, City of Providence vs. Clapp. 10 Harris, 65.

4th. The ice on the pavement, in this case, was a nuisance and an obstruction, within the meaning of the charter, which the defendant was bound to remove, or a defect in the footway or drains which the defendant was, in like manner, bound to repair, as is evidenced by its own ordinances. Independent, however, of the definition given by the city, of its liabilities in this respect, by its own ordinances, the ice on the pavement was a nuisance and an obstruction equivalent to a want of repair. 1 Hawk. P. C., 212. Jacob's Law Dic., "Nuisance." Bac. Abr., "Highways," D. 3 Bl. Com., 216. 4 Do., 167, 3 Pick., 268, Bigelow vs. Inhabitants of Weston. 13 Metcalf, 292, Drake vs. City of Lowell. 7 Greenlf. Rep., 442, Springer vs. Inhabitants of Bowdoinham. 2 Fairfield, 271, Frost vs. Inhabitants of Portland.

5th. There [**24]  was evidence from which the jury were authorized to infer reasonable notice to the defendant, and want of due diligence in removing the obstructions. 7 Greenl., 445. 13 Pick., 98, Reed vs. Inhabitants of Northfield.

6th. But there is another aspect under which the defendant's liability arises, independently of its charter duties. The obstruction in this case was not an inevitable result of the ordinary operation of the elements, over which the defendant could not reasonably be presumed to have control. It was the natural and necessary consequence of the authority given by the defendant to the Water company to lay its pipes and introduce its water within the limits of the city. The powers and rights vested by statute in the defendant, over the streets, &c., within its jurisdiction, are analogous to those of proprietors of fixed property in general. Its liabilities, therefore, are the same so far as to bring it within the principle, "Sic utere tuo ut alienum non loedas." 1 Adol. & Ellis, 822, King vs. Pedley. 7 Mees. & Wels., 456, Thompson vs. Gibson. 2 Denio, 443, Mayor, &c., of New York, vs. Bailey. 4 Do., 317, Fish vs. Dodge. 9 Humph., 757, City of Memphis vs. Lasser.  

JUDGES:
The [**25]  cause was argued before LE GRAND, C. J., Tuck and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*173]  MASON, J., delivered the opinion of this court.
This action was brought to recover damages for an injury sustained by the plaintiff, in consequence of the alleged negligence of the defendants, in not preventing or removing an accumulation of ice on the footway on Fayette street, Baltimore, upon which the plaintiff slipped and fell, and broke his kneecap, whereby he became lame and crippled for life.
There is no dispute about the facts. That the ice had accumulated and been suffered to remain on the side walk for a long time, to the great inconvenience and even danger of persons passing, and that the plaintiff actually fell and seriously 

 [*174]  injured himself, there is no doubt. But the questions presented upon this record are, first, is a municipal corporation like the city of Baltimore, responsible at common law, as individuals are, for the consequences of causing or not removing nuisances? secondly, if not, has this corporation been made so responsible by any act of our Assembly? and thirdly, if responsible in either aspect of the case, does the evidence disclose that the plaintiff has [**26]  received such special or particular damage from this nuisance which is not common to all the community, and which will entitle him to maintain the present action?
We will first proceed to consider the second general proposition, viz., the liability of the city under the statutes.
The act of 1796, chap. 68, incorporating the city of Baltimore, among other things, provides, that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances." It is a well settled principle that when a statute confers a power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary but imperative, and the words "power and authority," in such case, may be construed duty and obligation.
Whether the obligations and liabilities which attach to the individual, in regard to nuisances, apply or not equally to corporations, at common law, it is not now necessary for us to determine. We are of opinion, that the effect of the provision in the statute just cited, was to place the corporation of Baltimore, in regard to their obligations to [**27]  prevent and remove nuisances, upon the same footing which is held by individuals and private corporations. The people of Baltimore in accepting the privileges and advantages conferred by their charter, took them subject to the burthens and restrictions which were made to accompany them under the same charter. One of those burthens was, the obligation to keep the city free from nuisances. A disregard of the obligation thus imposed would be attended with the same consequences which would result to the individual at common law, were he to disregard his obligations to the community in this particular. As the duty is 

 [*175]  the same in the corporation and the individual, so are the consequences the same for its disregard. The only difference is, that the common law imposes the duty upon the individual, while a statute of our State imposes it upon the corporation. To say that, under the statute, the city of Baltimore is bound to prevent nuisances, and yet to add that none of the common law consequences attach for not doing so, is to assert what would amount to a contradiction of the first proposition, and virtually affirms that the city is not bound to remove or prevent [**28]  nuisances. The counsel for the defendants seems rather to admit this position, that the city would be responsible if this obligation was not discharged, but seeks to establish the proposition, that the passage of the ordinances given in evidence, providing for the removal of ice and snow from the streets, operated as a full discharge of the city's obligations, and will constitute a complete defence to all actions like the present. In order that the city should relieve itself from this obligation, it was not only necessary that it should pass ordinances sufficient to meet the exigencies of the case, but it was also bound to see that those ordinances were enforced. To pass an ordinance, and not enforce it, would be the same as if none had been passed, so far as the public interests were concerned. There is no evidence in this record of any effort on the part of the city to enforce their ordinances on this subject, but, on the contrary, it appears they were suffered to sleep as dead letters on its statute books. To have enforced them was necessary to bring the city within the saving, of having used reasonable care and diligence in removing the nuisance complained of. In the case of Pittsburgh City vs. Grier, 22 Pa. 54, [**29]  the court very justly remark, upon a case very similar to the present, that "it is no matter whether that duty (removing a nuisance) remains unperformed because she has no ordinances on the subject, or because, having ordinances, she neglects to enforce them. The responsibilities of the corporation are the same in either case." In the same case, (page 67,) the court further say, "they ought to have performed that duty with vigilant fidelity."
We are not prepared to say that had the city, after it had 

 [*176]  passed its ordinances upon this subject, and endeavored to enforce them with vigilance and energy, would not thereby have so far used ordinary care and diligence, as to have exempted them from responsibility upon an action like the present. But this does not appear to have been done, at least there was no proof of it, although the nuisance complained of had existed for a long time before the accident to the plaintiff occurred. And besides, the defendant by modifying its second prayer, which was granted by the court, could have secured all the advantage to which it was entitled upon this point. That prayer was as follows:
"2d. If the jury believe that the accident happened [**30]  to the plaintiff by reason of the ice being upon the pavement, and that said ice could not have been prevented from being on said pavement, whereby the injury was occasioned, at the time of said accident, but that it was owing to causes which could not have been prevented by ordinary and reasonable care and diligence of the Mayor and City Council, that then the plaintiff is not entitled to recover."
Under it, evidence showing due care and diligence, might have been offered, and the court might, in addition, properly have told the jury, that a vigorous effort to enforce their ordinances on this subject, on the part of the city, would have amounted to such care and diligence, and thus have relieved them from responsibility. Were this not so, there would be no telling how far the city might be made liable for failure to remove nuisances. Great public immorality might be regarded as a nuisance, and every wrong or injury, resulting from such a source, might be laid to the city's account, notwithstanding every effort, through its police, had been made to suppress such immorality and vice. The same might be said of causes producing epidemics and the like.
It was also necessary that the [**31]  plaintiff should, on his part, show "reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him." But the defendants had the full benefit of this legal principle, by having their third prayer (which embraced the proposition) granted.

 [*177]  The only proposition, then, advanced by the defendants, which was denied, was that which affirmed that the mere passage of the ordinances for removing the snow and ice, &c., operated as a discharge of the city from responsibility. For the reasons already assigned, we think the court was right in not adopting this proposition as law.
We think, also, that the plaintiff's prayer was properly granted, as containing the whole law of the case upon the proof legitimately offered. That prayer was as follows:
"If the jury find from the evidence in the case, that ice had accumulated in large quantities on the public footway on the North side of Fayette Street, between St. Paul and Calvert streets, in the city of Baltimore, completely covering the said portion of said footway, in such manner as greatly to obstruct, inconvenience and endanger the public in walking along and over said footway; and if the jury [**32]  further find, that the said obstruction could have been removed, or the danger and inconvenience therefrom remedied, by the use of proper care and diligence on the part of the defendant, or its proper agents appointed for that purpose; and if the jury further find from the evidence, that the defendant and its proper agents aforesaid, had notice, or might by care and diligence have obtained notice, of such obstruction by ice as aforesaid, a sufficient time to have removed the same before the occurrence of the injury complained of, then it was the duty of the said defendants, or its agents, to have removed the said obstruction in a reasonable time after notice thereof, or after they might have obtained notice thereof, by the use of ordinary care and diligence; and if the jury further find that the plaintiff, while exercising ordinary care and diligence on his part, received the injury complained of by falling on said obstruction by ice, and that such injury occurred after the lapse of a sufficient time from the notice of such obstruction to the defendant, or its said agents, or from the period when the defendant or its agents might have obtained notice thereof, by the exercise of ordinary [**33]  care and diligence, then the plaintiff is entitled to recover such damages by reason of his injury, as the jury may think he has sustained under the circumstances."

 [*178]  The only questions remaining, are, was the condition of the street which led to the accident, such as to amount to a nuisance, and if so, has the plaintiff sustained such an injury, special and peculiar, as will entitle him to recover. There can be no doubt from the evidence in the case, and it seems not to be controverted by the defendants, that the condition of the street was a nuisance. It is equally clear too, that the plaintiff has sustained such an injury as will entitle him to maintain this action. Where a party sustains an inconvenience or injury which is experienced in common with all the citizens, then the source of complaint becomes a common nuisance, and the rule of law is clear, that the remedy must be by indictment. But, on the contrary, notwithstanding the party producing the nuisance may be indicted, yet if its existence has produced special and particular damages to an individual, the latter may maintain a special action against the wrongdoer. The law upon this particular point is correctly [**34]  and fully stated in the case of Stetson vs. Faxon, 19 Pick. 147; and by Judge Archer, in an opinion delivered in the Baltimore county court, in the case of Barron & Craig vs. City of Baltimore, reported in the 2 American Jurist 201, in the year 1828.
The view we have taken of this case does not conflict, in our judgment, with the decision of the Supreme court in the case of The City of Providence vs. Clapp, 17 Howard 161.
In that case the court say, "it is admitted that the defendants are not liable for the injury complained of at common law, but that the plaintiff must bring the case within the above statute to sustain the action." We have said in this case, that the liability of the defendants is fixed by the statutes of our State, and nothing more.
The general liability of a municipal corporation, like the present, in actions of this kind, has been recognised by a number of well adjudged cases, many of which resemble the case at bar.  City of Erie vs. Schwingle, 22 Pa. 384. Pittsburgh City vs. Grier, Ibid., 54. Delmonico vs. New York City, 1 Sandf. 222.  19 Pick., 511. Henly vs. Mayor of Lyme, 5 Bing. 91, [**35]  and others.
Judgment Affirmed. 

5 of 31 DOCUMENTS 

GEORGE R. GAITHER vs. JOSEPH MYRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 118; 1856 Md. LEXIS 13 

JUNE, 1856, Decided 

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

Assumpsit, by the appellant against the appellee, to recover damages for losses on the sale of flour shipped by the plaintiff on board the ship "Seaman," on a voyage from Baltimore to Valparaiso and a market, alleged to have been occasioned through the negligence and misconduct of the defendant, who was part owner and master of the ship, and consignee of the flour. Plea, non assumpsit, with an agreement to waive all errors in pleading, and that either party might give in evidence any matter which would be admissible under any state of pleadings, and that the plaintiff should file a brief statement of the grounds of his claim. This statement sets forth that the plaintiff was owner of two hundred barrels, parcel of a lot of flour, shipped through his agents, Wysham & Sons, in April 1849, on board the above named ship for Valparaiso and a market. The grounds of claim against the defendant are:

1st. As part owner and master of the vessel: for neglect and want of care of the flour during the continuance of the contract of affreightment.

2nd. As part owner and master: for improper delivery of the flour on the mole at Lima, and [**2]  for want of care and attention for its protection, afterwards, from injury, it being left, as alleged, on the mole, exposed to the action of the sun and of the spray of the sea washing against the mole.

3rd. As consignee of the flour: in various respects:--1st, for receipt as consignee of the flour at an improper place; 2nd, for want of care after its receipt; 3rd, for neglect of due and becoming efforts to sell it at the earliest practicable period and for the best attainable price; 4th, for remissness in not enforcing compliance by the purchaser with a sale of the flour at $ 8 per barrel; 5th, for leaving the flour at Lima, or some other place, unsold when he left that country; 6th, for placing the flour, without authority, and in violation of his duty and undertaking as consignee, in the hands of some other person; 7th, for omitting to invest the proceeds, as instructed, in a return cargo.

Exception. The proof, so far as necessary to be stated, is briefly as follows: The ship "Seaman" cleared at Baltimore the latter part of April 1849, for the west coast of South America, Callao being the port named as her destination. Part of her cargo was flour of various brands. The [**3]  defendant was master, consignee of the entire cargo, part owner, and interested in a shipment of four hundred barrels of flour of the "Harper's Ferry" brand, shipped by the owners. There were also two hundred barrels of flour, shipped through Wysham & Son, of the "Oakland" brand, which belonged to the plaintiff. The plaintiff's flour was proved to have been, when shipped, good and sweet, of a superfine quality, which brought an extra price in the Baltimore market, perfectly fresh, and carefully put up in barrels well made out of seasoned timber. The bill of lading described this flour of the plaintiff as shipped for "Valparaiso and a market," to be there delivered to "Capt. Myrick, or assigns," &c. The letter of instructions from the shippers to Capt. Myrick, dated "Baltimore, 20th of April 1849," directed him to sell the plaintiff's flour to the best advantage. In regard to returns he was to exercise his own judgment, to do that which he thought most advantageous for them. Again this letter says: "In regard to returns you must be governed by circumstances;--it is possible you may sell your vessel, and unless you feel certain that something can be made by investing the proceeds in [**4]  something to pay a profit here, it would perhaps be advisable to bring or send home the money."

The voyage out was of medium length. When the ship arrived at Valparaiso the captain received a letter from a Mr. Dartnell, a commission merchant, residing in Lima, dated "Lima, July 13th, 1849," and directed to Capt. Myrick, at Valparaiso, in which the writer acknowledges the receipt of a letter from Capt. Myrick, of the "23rd of April," and says that good flour should bring at Lima $ 10 or $ 10 1/2 per barrel, also that "the Seaman may probably find a buyer at about $ 12,000 or $ 13,000."

It was then proved that the captain sold at Arica one hundred and fifty barrels of flour, at $ 9 1/4 per barrel, and delivered the same out of the "Harper's Ferry" brand, and Wysham, a passenger on board the vessel, and a witness for the plaintiff, swears, that, in order to get at this "Harper's Ferry" brand, the captain removed out of the way the other flour shipped by Wysham & Son, whilst the second mate of the vessel, a witness for the defendant, says, that the flour discharged at Arica was from the top of the ship, and that the "Harper's Ferry" brand was stowed on top of the others. This [**5]  was all the flour sold at Arica, but Wysham proves that the captain told him he could have sold the whole of the flour on board, at an average price, a little less than $ 9 1/4 per barrel, but that he did not sell it, because he expected a better price at Lima, his advices being that he could get for it there from $ 10 to $ 10 1/2 per barrel.

The ship then proceeded to Callao, where she arrived on the 5th of October 1849. As to the condition of the flour at this time on board, Wysham says: "the flour on board the vessel on its arrival at Callao was sweet, and that he tried some of every brand." The second mate, on the other hand, says, that the day after the arrival at Callao sample barrels of each brand were sent ashore, and shortly after news came that the flour in them was sour, and shortly after this orders came from the captain to deliver the whole cargo on the mole; that witness then got the flour up from the hold and examined every barrel on board the vessel, by taking the plugs out and tasting and smelling the flour, and that he found it was all sour; that he then reported its condition to the chief mate, who examined it with the steward, and both pronounced it sour; that [**6]  it had a very sour taste, the smell was musty, bad, sour and very disagreeable, that when a barrel was opened the smell was very offensive.

In regard to the delivery of the flour on the mole, Wysham proves, that between the day of the arrival, (5th of October,) and the 13th of October, the captain sold the vessel for $ 10,500 on a contract, which obliged him to deliver her within ten days thereafter, and that he afterwards caused all the flour to be landed on the mole, at a time when the castle and warehouses were completely filled with storage, and that the flour was suffered to remain there on the mole for six or eight days exposed to the sun and light. Dartnell, on the other hand, says the flour was put into warehouses immediately after it commenced being landed day by day, and was not allowed to remain on the mole. As to the effect of such exposure upon the flour, two witnesses for the defendant, who had frequently been to the Pacific and carried flour to that market, say that, in their opinion, the exposure of the flour on the mole at Callao for six or eight days would not have any injurious effect upon it, and that it would be better so exposed than if kept in the hold of [**7]  the vessel. Wysham, on the contrary, says, that from his knowledge of flour, such exposure did it injury, and that, in his opinion, such exposure, even for twenty-four hours, would cause flour to become sour; and Krebs, another witness for the plaintiff, who had been engaged in the business of selling flour, says that exposure to light and heat, or either, is very injurious, and that all flour warehouses are darkened, and that exposure to heat and light for six or eight days would cause it to turn sour.

As to the sale of the flour, the plaintiff offered in evidence a letter from Capt. Myrick to Wysham & Son, dated "Lima, October 13th, 1849," in which he says he had sold their flour at $ 8 per barrel, a price much less than he anticipated, but occasioned by the market being overstocked. This letter also states, that "all the different brands kept perfectly sweet, and appears as fresh as when shipped at Baltimore." Dartnell, a witness for the defendant, proves, that all the flour in the cargo was sold, some ten or fifteen days after the vessel's arrival, by him, as local consignee, at the request of Capt. Myrick, at $ 8 per barrel, on condition of being sound and merchantable, as [**8]  represented to the purchasers; that sample barrels were delivered on the day of sale to the purchasers, who, within twenty-four hours thereafter, threw up the purchase, because the bread made from these barrels was not sound; that the quality of the flour was then examined by the seller, in company with competent and impartial persons, and was found to be sour, thus rendering it impossible to compel the purchasers to receive it; that had the purchase been brought before the tribunal of commerce, which would have caused an official examination, the laws of the country would have condemned the flour to be thrown into the sea, as had been frequently practiced there; that after the purchase was thus abandoned attempts were made to sell the flour, and some few sales were made before Capt. Myrick left Lima, and before its bad character became known; that upon consultation with, and at the request of, Capt. Myrick, witness shipped one hundred and fifty barrels of this flour, (one-half being the plaintiff's flour and the other half that shipped by the owners,) to Paita, where it was placed at $ 10 per barrel, but being found unsound, it was afterwards sold by the consignees there at $ 4 per [**9]  barrel; and that Capt. Myrick left Lima about the 12th of December 1849, having staid until that date endeavoring to effect sales of the flour. It was also proved that it was the usage and custom, and that the laws of Peru required it to be done, for all supercargoes or consignees to employ a local consignee to effect sales of cargoes, and that all mercantile transactions there were conducted in the Spanish language.

The account of sales were then offered in evidence by the defendant, showing that all the flour was not sold until the 12th of June 1850. In these accounts various charges, including those for the landing, reshipment, and freight of the flour sent to Paita, were deducted from the gross sales, and the result was an almost entire loss of his flour to the plaintiff. It was also proved by another witness, that he, (witness,) was out in the Seaman in 1848 with Capt. Myrick, then acting as captain, and that they had a consignment of flour on board, and that the same proved sour and the shipment resulted badly. It was also proved that Baltimore flour, when carried to Callao, is very liable to become sour and unmerchantable.

The plaintiff then asked instructions, in [**10]  substance as follows:

1st. If the jury find from the evidence that defendant was part owner of the "Seaman" when she sailed from Baltimore, in April 1849, and so continued until the vessel was sold by him at Callao; that such sale was there made as stated by the witness Wysham; that the plaintiff's flour could have been sold by defendant at a fair and reasonable price, if he had made proper efforts to sell it, at some one or more of the ports at which he had arrived before he went to Callao; that he went to Callao under the expectation of selling the vessel there at an advantageous price, and would not have gone so far except for such expectation, and that such extension of the voyage was not made in consequence of any obligation of duty, and was not the offspring merely of a desire to promote the interest of, and fulfil his duty to, the owners of the cargo consigned to his order, and that in consequence thereof plaintiff's flour became deteriorated and damage resulted to him, then the plaintiff is entitled to a verdict for such damages as the jury shall find he really sustained from the extension of the voyage to Callao.

2nd. If the jury find the facts set out in the first [**11]  prayer, and that defendant had visited Callao, as master of the same vessel, in 1848, and on that voyage the cargo consisted in part of Baltimore flour, which became sour by reason of the character and length of the voyage, and that such flour, when carried in such a vessel to Callao, is very liable to become sour and unmerchantable in a voyage of the usual length, and that defendant had experience and knowledge of such liability; that defendant went to Callao in the present voyage to accomplish his own purposes, or to promote the interest or objects of the owners of the vessel, and that a prudent and careful consignee, under the state of facts as the jury shall find them from the evidence, ought not to have carried the plaintiff's flour to Callao, then plaintiff is entitled to recover such damages as the jury shall find he sustained from the carriage of his flour to Callao.

3rd. If the jury find that defendant sold at Arica one hundred and fifty barrels of flour, part of the cargo, at $ 9 1/4 per barrel, and that this was a fair price for flour at that time in that market, and that in making this sale defendant acted judiciously and with sound discretion; that he filled this [**12]  contract of sale by delivery of flour in which he was interested, and shall not find that the purchaser was unwilling, or, in case the offer had been made, would have been unwilling, to receive a proportionate part of this quantity from the plaintiff's flour; that defendant's object in so filling this contract exclusively out of the lot in which he was interested, was to secure to himself and his co-owners the supposed benefit of this contract in exclusion of the owners of the other flour, and that this discrimination was not made bone fide, and that loss was occasioned to the plaintiff thereby, then the plaintiff is entitled to recover such damages as the jury may find he actually sustained, by defendant's omission to deliver a proportionate part of these one hundred and fifty barrels out of his flour.

4th. (This prayer was abandoned.)

5th. If the jury find that defendant sold one hundred and fifty barrels of flour at Arica, at $ 9 1/4 per barrel, and filled the sale out of flour in which he was interested, and that he could, if he had consented and been willing, have sold the whole cargo, at an average price, a little under $ 9 1/4 per barrel, and that this would have been [**13]  a fair and reasonable price, and that he refused so to sell the whole because of his unwillingness to reduce the price of that which he did so sell; and shall not find that the lot actually delivered on this sale was of superior or better quality than the other flour on board his ship, and that a prudent and careful person, under the actual state of facts, as the jury shall find them from the evidence, ought, in the absence of any ulterior objects, to have sold the whole cargo at such average price, then the plaintiff is entitled to a verdict for such damages as the jury may find from the evidence he actually sustained from defendant's omission to sell his flour at Arica.

6th. If the jury find that defendant sold the vessel, after his arrival at Callao, on or before the 13th of October 1849, under a contract to deliver her within ten days, and that within these ten days he discharged the cargo, in order that he might be ready to comply with this contract, and that at the time the cargo was so discharged the castle and warehouses at Callao were entirely filled with articles there stored, so that it was impossible to store therein the flour so discharged, and that the flour, if [**14]  landed, would necessarily have to remain on the mole until room could be found for it in the castle or warehouses, and that this was known to defendant before the flour was landed, and that when landed it was left on the mole for six or more days before it could be, or was, received into the castle or warehouses, and that whilst it so remained on the mole it was exposed to the action of the weather and was thereby injured, then the plaintiff is entitled to recover such damages as the jury may find he really sustained from such landing of the flour and exposure on the mole.

7th. That by the terms of the bill of lading the flour was delivered to defendant as consignee as soon as, and whenever, the vessel reached Valparaiso and a market, and if the jury find there was a proper market for this flour at Arica, such as a prudent and judicious owner, acting in the premises, ought and would have embraced, and that defendant had knowledge of the contents of the bill of lading and of the fact that there was such a market at Arica, then his omission to avail himself of it was negligence and want of due care on his part as consignee, and the plaintiff is entitled to recover such damages as [**15]  the jury may find he really sustained by reason of such negligence and want of care.

8th. If the jury find that defendant caused the plaintiff's flour to be landed and left on the mole at Callao, in the manner stated by the witness Wysham, and that at the time he had not found a market therefor, and did not then know, and had not then any reasonable ground for believing, he would be able to sell the same there at a fair price or for its value, then such removal was an improper act on his part, if the jury find it was done by his orders, and if they further find the plaintiff sustained damage therefrom, he is entitled to a verdict for such damages as they may find he really sustained thereby.

9th. If the jury find the facts set forth in the preceding prayer, and that before such landing sample barrels had been delivered at Callao, and that upon trial thereof the flour therefrom had been pronounced sour and the bread made from it bad, and that by the laws then in force at Callao sour flour was unmerchantable and could not be sold except in violation of these laws, and was liable to be cast into the sea and thus totally lost to the owner, and that these facts were known both [**16]  to defendant and the person he employed to act for him in the sale of the flour, and that notwithstanding such knowledge defendant afterwards caused the flour to be landed at this port, as stated by Wysham and the second mate, such conduct was improper, and amounted to negligence and want of due care on defendant's part, and the plaintiff is entitled to recover such damages as the jury may find, in case they should find that any, did result to him thereby.

11th. If the jury find the facts set forth in the preceding prayer, then no allowance should be made by them for the expenses incurred in the landing of the flour at Callao which was reshipped to Paita.

12th. If the jury find the facts set forth in the 10th prayer, and that one hundred and fifty barrels of the flour were afterwards reshipped from Callao and sent to Paita, then no allowance should be made by them for the expenses incurred in such reshipment.

13th. If the jury find that after defendant found that plaintiff's flour could not be disposed of at a fair price, or for its value, at Callao, he consented or permitted that part of it should be sent to another market, to be there disposed of by another person,  [**17]  without the knowledge or consent of the plaintiff, or of any member of the firm of Wysham & Son, and that he remitted and abandoned all and any supervision over the flour, and over its sale and disposition, in the meantime, then such conduct was a violation of his duty as consignee, and even if the jury shall find that some other person assumed to sell the flour in the absence of the defendant, and without his knowledge and approval of the terms of sale, such sale is not binding on the plaintiff, unless they find that he, or Wysham & Son, ratified or recognised such sale as validly made, and notwithstanding such sale plaintiff's title to the flour has not been divested, and the jury, if they find the facts set forth in this prayer, may and ought to find that defendant has unlawfully converted and disposed of the flour to his own use, and is liable in this action for such damages as the jury may find from the evidence the flour was worth at the time of such conversion.

14th. If the jury find that flour was shipped by Wysham & Son on board the Seaman, as shown by the bill of lading, and that two hundred barrels thereof was designated as "Oakland" flour and belonged to the plaintiff,  [**18]  and that it was in good condition, fresh and sweet, and of extra quality as superfine flour, and was carefully and properly barrelled up in barrels well made of seasoned timber, then the burden of proof is on the defendant to show, if he shall affirm that the flour became sour and spoilt before it was landed from the vessel, that it became sour and spoilt without any negligence or want of due care on his part.

The court, (FRICK, J.,) granted the 14th prayer, but refused all the others, and to this refusal the plaintiff excepted. The verdict and judgment were in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

The principles which regulate the conduct of factors abroad apply to supercargoes: they are liable for injuries to the employer, occasioned by the want of reasonable skill or ordinary diligence.

By reasonable skill is understood such skill, and no more than, is ordinarily possessed and employed by persons of common capacity engaged in the same trade, and by ordinary diligence that degree which persons of common prudence are accustomed to use about their own business.

Supercargoes are also bound to good faith, and must exercise their judgment after proper inquiries and precautions, and, where they have a venture in the same ship, they must exercise as much diligence and care about their factorage transactions as about their private concerns.

They are chargeable for negligence if they sell without making proper inquiry, after having received notice of facts which ought to put a person of prudence on his guard.

As a general rule they cannot delegate their authority, but exceptions may arise where the power of delegation is conferred by the necessity of the case, the usages of trade, or the law and custom of the country where the agency is to be executed.

Where the master of the ship is consignee of the cargo, his duties and liabilities are as distinct as if confided to different persons.

It is the duty of the ship to carry the cargo according to the projected voyage, and this must be done by every reasonable and practicable method; every act not properly and strictly in furtherance of this duty will make the master and owners responsible.

In some cases a sale of the cargo and ship may be justified, but the necessity of the case must require that course; in such case the master is to do that which a wise and prudent man will think most conducive to the interest of all concerned; some regard may be allowed to the interest of the owners of the ship, but that of the cargo must not be sacrificed to it.

Transhipment for the place of destination, if practicable, is the first object, if that be impracticable, a return or safe deposit may be made; the merchant should be consulted, if possible: a sale can only be justified by that necessity which supersedes all human laws, and if the master sell without such necessity, he and his owners will be answerable to the merchant.

The words, "to Valparaiso and a market," in a contract of affreightment, authorise the ship to visit such other ports beyond the named port as the master and supercargo thinks expedient in the exercise of a sound discretion.

These words also imposed on the ship the carriage of the cargo until a market was found, or the goods left on deposit for sale under circumstances authorising such a departure from the original contract.

Under this contract the master and supercargo was not bound to sell at the first or any other port, if he had reason to believe that he could find a better market by going further, and acted in good faith.

A prayer which submits to the jury the finding of facts of which there is no sufficient evidence, is erroneous.

The presumption of law is, that an agent has done his duty until the contrary appears; misconduct and negligence will not, in the absence of proof, be presumed.

If a master, who is also part owner and supercargo, sells the vessel before the cargo is landed, and then lands it before a sale was effected or storage obtained for it, in order to deliver the vessel in compliance with his contract of sale, and the cargo is injured by such landing and exposure, he is responsible to the shipper for the loss resulting therefrom.

The power to sell is subordinate to the claim of the cargo to be carried and delivered according to the projected voyage, and the fact that the shipper knew that the vessel might possibly be sold cannot affect his claim for damages incurred by the sale.

The shipper cannot recover for an act of the master subjecting the cargo merely to the risk of being taken and destroyed under the local laws of the port of discharge, in the absence of proof that it was so taken, or that any loss to the cargo resulted therefrom.

Where the cargo is landed before sale and before the termination of the voyage, and is reshipped to the place of destination, the shipper is not liable for the charges of landing and reshipment; it lies on the master to excuse himself for such act.

Where the consignee is master, and this is known to the shipper, he cannot wholly abandon his duty as master to discharge that of supercargo; he must act in both, as far as possible, with reference to the interest of the respective principals.

If such a consignee abandons or delegates his trust to another, merely because the cargo could not be disposed of at one of the ports reached prior to the termination of the voyage, it is a violation of duty for which he is responsible.

But if another party, wrongfully and without his privity, assumes authority to sell, and does sell the cargo, the consignee will not be responsible.  

COUNSEL:
William Schley for the appellant, argued, that the court below erred in its refusal to grant each of the rejected prayers except the fourth, which he admitted was too broad, and therefore abandoned it.

1st Prayer. The plaintiff proved by Wysham that defendant sold at Arica one hundred and fifty barrels of flour of the Harper's Ferry brand, and that to get at this brand he removed out of the way the flour shipped by Wysham & Son. The same witness proved that the vessel arrived at Callao on the 5th of October 1849, and [**19]  that between that day and the 13th defendant sold the vessel under a contract, which obliged him to deliver her within ten days thereafter. It was also proved that defendant was interested in the flour of the Harper's Ferry brand. A letter from Dartnell, offered in evidence by defendant, dated at Lima, on the 13th of July 1849, and which was received by defendant at Valparaiso, stated that "the Seaman may probably find a buyer at about $ 12,000 or $ 13,000." This was in answer to a letter from defendant, dated the 23rd of April, and which, of course, was written before he sailed from Baltimore. There was evidence therefore from which the jury might have found, if they so believed, that he went to Lima, for the purpose of selling the vessel there; and as he sold his own flour at Arica, there was evidence from which they might have found that he thought a sale at Arica, at the price which could have been obtained there for the entire cargo, a desirable price; and might have found further that his real inducement to go to Lima was to find an advantageous sale for his vessel. The reason why he did not sell at Arica was to keep his vessel in ballast, and he went to Callao to sell his vessel,  [**20]  and not to sell his flour. This was evidence from which the jury might infer that he went there from bad motives and for his own interest. This prayer looks to the liability of the defendant as consignee of the flour which was shipped for "Valparaiso and a market." As to the general duties of a consignee: he must not discriminate in his own favor to the prejudice of his principal, (Russell on Factors, 33, 270, 271, in 48 Law Lib., 34, 170, 171, 172;) he must exercise the purest good faith, (Paley on Agency, 11, 17.) It is true the letter of instructions from Wysham & Son to the defendant speaks of the possibility of the sale of the vessel, but it does not contemplate such a sale on any contingency. It is in reference only to the return voyage that this sale is spoken of, and it clearly never contemplated a sale until the voyage out was completed; that is, until a market was found for the flour; for the contract of affreightment was not completed until then. It is said there is no proof of the quantum of damages, but this is not so. It was in evidence that the flour was put up in extra order and was sweet, that it went along with that which was sold at Arica for $ 9 1/4 per barrel,  [**21]  and the presumption is that the plaintiff's was equally good with that sold there. When it arrived at Callao it was at first sold at $ 8 per barrel, and the subsequent sales were for less and less; all these are facts from which the jury could fix the standard of damages, and the prayer does not ask for any specific sum, but only for such damages as the jury may find.

2nd Prayer. This prayer is based on the same hypothesis as the first, with the additional facts, that defendant had experience of the injurious effect of a protracted voyage on a cargo of flour, and it submits to the jury the question of fact, what a prudent consignee, under the circumstances, ought to have done: whether a party has exercised reasonable care and skill is a question for the jury.

3rd Prayer. This prayer differs from the first and second, in introducing the element of purposed discrimination by the defendant in filling the sale at Arica with his own flour, in exclusion of any part of the plaintiff's flour. The legal proposition is, that the defendant in accepting the commission as consignee, was bound to act in the business of the plaintiff in the like beneficial manner as he acted in his own [**22]  business. The Harper's Ferry brand, which he sold at Arica, was the only flour which had been shipped for Callao, and yet he sold that before it reached its destination, leaving the plaintiff's flour, which had been shipped for an intermediate port and a market, unsold. The jury upon all these facts might have found, if they really so believed, that he made the discrimination for his own advantage as one of the owners of the Harper's Ferry brand. On this point see 2 Pick., 123, Barrett vs. Lewis. 5 Leigh, 456, Johnson vs. O'Hara. 4 How., 554, 559, Michoud vs. Girod.

5th Prayer. This prayer is based on the evidence of Wysham, that the whole of the flour on board could have been sold at a little less than an average of $ 9 1/4 per barrel, if defendant had been willing to sell at that price. The jury might have discredited the statement to Wysham, that he did not sell because he expected a better price at Lima. The jury might have found from all the evidence that he retained the flour unsold, in order that he might carry his vessel to Callao without want of ballast.

6th Prayer. There was conflicting evidence as to whether the exposure of the flour on the mole for six or more [**23]  days would cause it to turn sour. The jury might have agreed with the notions of the plaintiff's witnesses on this point. There surely was evidence to go to the jury on this point. There was also evidence to justify their finding every fact embraced in the hypothesis of this prayer. This prayer concedes, (which is denied in the eighth prayer,) that he might properly land the plaintiff's flour before he had found a market, but insists that he had no right to land it until he had procured proper storage.

7th Prayer. This prayer involves the construction and effect of the bill of lading. The terms, "Valparaiso and a market," mean, till a market is found. (1 Philip on Ins., 496. 5 Pick., 51, Chase vs. Eagle Ins. Co. 16 Do., 303, Deblois vs. Ocean Ins. Co. 1 Arnold on Ins., 359, 438.) The defendant therefore had no right to land the cargo at Callao, having gone beyond Valparaiso, unless there was there an actual market. In a policy of insurance the terms, "Valparaiso and a market," would have continued the risk until a market was found. The defendant therefore was bound to carry our goods until he found a market; the contract of affreightment was not completed until then. This expression [**24]  also means, as I understand it, that the cargo may be sold at any intermediate port before reaching the named port.

8th Prayer. This prayer affirms that it was an improper act for the defendant, as master, to land the flour, and equally improper for him as consignee to receive the flour, before he had assurance, or reasonable assurance, of a market at Lima. By the terms of the bill of lading he was bound to go further, if necessary, until a market was found, or, in the alternative, to retain it on board. Angell on Carriers, secs. 95, 97, 281.

9th Prayer, This prayer is based, in part, on the evidence of Dartnell, that the act of landing sour flour was in contravention of law, and exposed the articles to condemnation and destruction, and on the evidence, (as sought to be established by defendant,) that the flour was sour before it was landed, and so known to defendant. The act was inconsiderate and imprudent, and placed defendant, as proved by Dartnell, in the power of bakers and other persons there, and produced eventual heavy loss.

10th, 11th, 12th Prayers. These prayers look to the expenses of landing, of reshipment, and of freight on the one hundred and fifty barrels [**25]  landed at Callao and subsequently shipped to Paita, because, as alleged, there was no market at Callao. The defendant in his accounts of sales had deducted these expenses, and it was shown by the facts that there was no market at Lima.

13th Prayer. The defendant sent the flour to another person in another market for sale. The flour sent to Paita was sold at prices which left the charges thereon unpaid by $ 235.12. The defendant had no right to dispose of the consignment in this manner. It was an unlawful conversion of the flour. Whenever a party is entrusted with an agency or a trust in which he is to exercise his discretion, it is a personal trust, which cannot be delegated. 4 Camp., 183, Catlin vs. Bell. 1 Hill, 501, 505, Commercial Bank vs. Norton. 26 Wend., 485, Lyon vs. Jerome. 8 Barr., 442, Etter vs. Bailey. 11 How., 223, Warner vs. Martin.

John Nelson for the appellee, stated that the facts of the case show, that the letter of instructions from Wysham & Son to the defendant, written at the commencement of the enterprise, spoke of the possibility of the sale of the vessel during the voyage, showing, therefore, that this matter was well known to the parties, and also [**26]  that, in addition to the flour of the plaintiff, there was flour of the owners, of whom the defendant was one, and in all sales of this flour that of the plaintiff shared equally with that of the defendant, except at Arica, where the sale was of the Harper's Ferry brand only, and none of the plaintiff's flour was of that brand. He then argued, that the court below properly rejected all the prayers which were refused.

1st Prayer. Because it is based on an hypothesis resting upon facts assumed, and opposed by the testimony in the cause. It assumes as proven:--1st, that there was an occasion offered for a sale of the flour at an intermediate port; 2nd, that defendant went to Callao with a view to the sale of his ship; and 3rd, that by this prolongation of the voyage the flour was injured. Of these facts, thus assumed, there is not a title of evidence. Again, the jury could not find damages unless there was proof of them. There is no proof as to what the condition of the flour was at Arica when it arrived there. There is no proof that it was examined there or that it was then sweet. There is, therefore, no evidence or standard from which the jury could estimate the damages. 2 Md.  [**27]  Rep., 217, Merchants Mutual Ins. Co. vs. Wilson.

2nd Prayer. Is liable to the same objection as the first. There is no evidence that the defendant went to Callao in 1848; the only testimony on this point is, that he was in the Pacific in 1848. There is, therefore, no evidence tending to show that he had experienced a knowledge of the fact that flour was liable to sour in Callao.

3rd Prayer. For the same, and additional reason, that defendant was under no legal obligation to sell in the manner affirmed by this prayer. A consignee is to use reasonable diligence and discretion, and the only test of this is, whether he takes the same care of the property of his principal as he does of his own, and this was done in this case. There is no evidence that the purchaser at Arica would not be unwilling to receive a part of the several brands. The sale was of Harper's Ferry brand, and this is prima facie proof that he was unwilling to buy any other. There is no obligation on the part of a factor having a general cargo, to sell at an intermediate port a part of all the various consignments, and no authority can be found for such a proposition.

5th Prayer. Because it was opposed to [**28]  the only evidence in the case having relation to the subject. The only evidence that defendant had an opportunity to sell the whole cargo at Arica is that of Wysham, offered by the plaintiff himself, and this witness states that the reason why defendant did not sell at Arica was, that he could get a better price at Callao. If, therefore, he could get a better price at Callao, it was not his duty to sell at Arica. Besides, the proof is that he carried two hundred and fifty barrels of his own flour to Callao.

6th & 8th Prayers. Because there was no sufficient evidence to go to the jury in support of the hypothesis of these prayers. The two are connected and have relation to the discharge of the cargo at Callao. They do not put to the jury to find that the flour was sweet when it arrived at Callao, and there was therefore no evidence upon which the jury could find there was any damage. There is no proof that the discharge was made in order to expedite the sale of the vessel, or that the castle and warehouses were then full of storage. Again, there are facts in the case which have an important bearing on these propositions. The sale of the vessel was in contemplation of the parties [**29]  when the voyage was commenced. The ship was cleared for Callao, and was to go beyond Valparaiso. The defendant had written to see if a sale of the vessel could be effected at Callao. After he had sold the vessel it was clearly competent for him to discharge the cargo. What was he to do with the cargo when he undertook the voyage, with the knowledge and assent of the consignors that he was to dispose of his vessel? If the testimony shows that, in the exercise of a reasonable discretion and judgment, he put the flour on the mole, independent of the sale of the vessel, he did all that the law requires of him, and as to this the witnesses say it was better to put the flour on the mole in that climate than to keep it in the hold of the vessel. The prayers exclude this from the jury.

9th Prayer. Because there was no evidence of any damage sustained by the plaintiff from the act complained of in this prayer. If the flour had been cast into the sea the plaintiff might have a ground of claim, but it was not cast into the sea and the penalty therefore did not attach. There is no evidence that there was any damage occasioned by the landing of the flour, in violation of a penal law prohibiting [**30]  it from being landed. There is the same uncertainty in regard to the data or standard of loss.

10th, 11th, 12th Prayers. Because the reshipment to Paita was rendered necessary by the condition of the market at Callao, and was in pursuance of the defendant's duty as factor. These prayers, with the 7th and 13th, involve the question of the true construction of the bill of lading, which is the important question in the case. What is meant by "Valparaiso and a market?" It means that if the ship did not find a market at Valparaiso, she was to go further and elsewhere to find a market. "A market" means posterior to the named port--you must go to Valparaiso at any rate. The question then is as to the duty of the party on arriving at Callao, the ultimate destination of the vessel. The case in 4 Camp., 183, was that of an insurance of a cargo to be sold in the West India Islands, and it was held that a new destination could not be given under this risk, but that is not the present case, for here the defendant was to give, by the terms of the bill of lading, a new destination if a market was not found at Callao. The case in 11 Howard, was one of personal trust and confidence, and the sale [**31]  was made by the clerk of the party to whom the tobacco was consigned, and it was held, that a factor cannot delegate his power to a clerk unless by express contract. That is not this case. May not the master of a vessel, in a case of necessity, commit the property of his principal to a third party for sale? This is the question here, and, I think, the authorities clearly show that he may do so. 1 Johns. Cases, 175, Lawler vs. Keaquick. 31 Maine, 409, Stone vs. Waitt. 2 Pick., 615, Day vs. Noble. The case last cited is precisely the present case. The defendant left the flour in the hands of a trustworthy merchant, and his own flour, with that of the plaintiff, was sent to Paita and there sold. There is therefore no imputation, nor any ground for an imputation, resting against this defendant.  

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

OPINIONBY:
TUCK 

OPINION:

 [*136]  TUCK, J., delivered the opinion of this court.
The appellant sued the appellee, to recover damages for losses alleged to have been sustained on the sales of flour shipped on board a vessel which sailed from Baltimore, for "Valparaiso and a market," of which the appellee was part owner, master and [**32]  supercargo. Misconduct, negligence, and consequent liability, are imputed to him in each and all of these capacities.
At the trial fourteen prayers were offered by the appellant, all of which were refused, except the last. They involve the construction of the contract, and the extent and proper exercise of the discretion reposed in the appellee, under the circumstances by which he found himself surrounded, at his first port of destination, and afterwards in the progress of the voyage. The questions presented, in the argument, will appear by the statements and points filed, and we shall dispose of them in 

 [*137]  their order; first, however, stating generally the rules of law by which we suppose cases of this kind to be governed.
The principles which regulate the conduct of factors abroad apply to supercargoes. Beawes' Lex. Merc., 44, 47. Story's Agency, sec. 33. They are liable for injuries to the employer, occasioned by the want of reasonable skill or of ordinary diligence, by which is to be understood "such skill as is, and no more than is, ordinarily possessed and employed by persons of common capacity engaged in the same trade, business or employment; and by ordinary [**33]  diligence that degree which persons of common prudence are accustomed to use about their own business and affairs." Story, sec. 183. They are also bound to good faith, and must exercise their judgment after proper inquiries and precautions, and, where they have a venture on the same ship, they are bound to exercise, at least, as much diligence and care, as to their factorage transactions, as they do as to their own private concerns. And they are chargeable for negligence if they sell without making proper inquiry, after having received notice of facts which ought to put a person of prudence on his guard. Ib., sec. 186. Russell on Factors & Brokers, 33, 34. As a general rule they cannot delegate their authority, any more than other agents, but exceptions may arise where the power of delegation is conferred by the necessity of the case, the usages of trade, or the law and customs of the country where the agency is to be executed. Story, secs. 13, 14, 34, a. 11 Howard 209. Where, as in this case, the master is made consignee of the cargo, the duties and liabilities are as distinct as if confided to different persons. Story, sec. 41.
The responsibility of the [**34]  defendant in his capacity of part owner and master arises from the sale of the ship, and the alleged improper delivery of the flour at Callao. It is the duty of the ship to convey the cargo according to the projected voyage, and this must be done by every reasonable and practicable method. "Every act that is not properly and strictly in furtherance of this duty is an act for which both the master and owners may be made responsible." Abbott on Shipping, 241. There are emergencies under which a sale of the cargo 

 [*138]  and even of the ship may be justified, but the necessity of the case must require that course. This necessity may arise suddenly, and under circumstances that could not have been provided for. "In general, it may be said that, (in such a case,) the master is to do that which a wise and prudent man will think most conducive to the benefit of all concerned;--some regard may be allowed to the interest of the ship and its owners, but the interest of the cargo must not be sacrificed to it. Transhipment for the place of destination, if it be practicable, is the first object, because that is in furtherance of the original purpose: if that be impracticable, return [**35]  or a safe deposit may be expedient. The merchant should be consulted, if possible. A sale is the last thing that the master should think of, because it can only be justified by that necessity which supersedes all human laws. If he sell without necessity, his owners, as well as himself, will be answerable to the merchant." Abbott, 243. 1 Arnould on Insurance, 189, &c. Smith's Mercantile Law, 171, 292.
As to the construction of the contract: that is, the meaning of the words to "Valparaiso and a market," we understand the counsel to agree that they must be interpreted according to the analogy of this case to one arising under a policy of insurance containing such a clause; and by this test, we think, they authorised the ship to visit such other ports, beyond the one named, as the appellee thought expedient, in the exercise of a sound discretion.  Deblois vs. Ocean Ins. Co., 16 Pick. 303. Whether he was under any obligation to seek a market this side of Valparaiso, or to go there in the first instance, we need not decide, inasmuch as he did visit the named port, and no question is made on this part of the case. These terms also imposed on the ship the [**36]  carriage of the cargo until a market was found, or the goods left on deposit for sale under circumstances authorising such a departure from the original contract of affreightment. In the case of Richardson vs. London Ass. Comp., 4 Camp. 93, the goods in question were the investment of an East India captain, and the voyage was described in the policy to be, "at and from London to Maderia, the Cape of Good Hope, and all or any of the ports or places in 

 [*139]  the East Indies, &c., until arrived at the last place of discharge on the outward voyage, with leave to exchange the goods in the course of the voyage." The company's cargo was discharged at Calcutta, (a place within the policy,) and the ship ordered with another cargo to Madras. The captain had also landed the whole of his investment at Calcutta and had disposed of a considerable part of it; but, being unable to sell the residue, he resolved upon a new market, and for this purpose reloaded it on board the ship for Madras; on which intermediate voyage she was lost. The question was, whether, under the terms of this policy, the risk still continued on the residue of the captain's investment on board [**37]  at the time of the loss, or whether it had ended at Calcutta? Lord Ellenborough held, that the risk had ceased at Calcutta, "the last place of discharge on the outward voyage." If, he said, "the company's officers wish for the protection which is here sought; (that is, until the goods are finally disposed of in some market in the East Indies,) they must not limit the risk to the duration of the outward voyage, but extend it to the arrival of the goods to a market at their final port of discharge." It is added by Mr. Arnould, (Vol. 1, 439,) "There can be no doubt that an insurance in such form would effectually protect the goods until actually disposed of in some foreign market." If this be the liability of the insurers in such cases, it is clear that it is the ship's duty to carry the cargo until disposed of.
We proceed to apply these principles to the case before us.
The first prayer was properly refused, because it submitted to the jury the finding of facts of which there was no sufficient evidence. One specification is sufficient. There was nothing from which the jury could have found that the defendant did not make reasonable efforts to sell the plaintiff's [**38]  flour at a fair price, at some one or more of the ports which he visited before he reached Callao. On the contrary, it was in proof that he had offered the flour at Arica, and, not satisfied with the prices there, said he was going to Lima, of which Callao is the outer port, because he had received advices of better prices at that place. In the absence of evidence of such negligence and misconduct, the law does not presume that he did not make 

 [*140]  reasonable efforts to effect sales at such ports as he thought it expedient to visit, as it was his duty to have done; and especially as that presumption is rebutted by the consideration that it was his interest, as part owner, to sell the cargo as soon as practicable. And, even if he could have made sales at Arica or elsewhere, he had a discretion to do so or not, provided it was fairly exercised. The nature of the voyage--for a named port and a market--necessarily implied, as we have seen, that he was not bound to sell at the first or any other port, if he had reason to believe that he could find a better market by going further, and acted in good faith on such information. We may illustrate this view, (and the same applies to propositions [**39]  presented by some of the other prayers,) by supposing that, with the advices he had received at Valparaiso before him, he had sold the plaintiff's flour at Arica for the price offered, and had then sailed for Lima, and there sold his own flour at the higher price named in his advices. Would not the plaintiff have had good reason to complain that he had sold his flour at the wrong market? Yet, when he has acted upon the information received, and loss has occurred to the plaintiff, he is charged with negligence. Certainly the result should not alter the application of the principle.
Objections equally fatal apply to the second, third and fifth prayers. The second is based in part on the first, besides embodying other propositions of fact without evidence to sustain them, which we need not indicate.
The third is objectionable for the reason that there is nothing to show that the purchaser of the one hundred and fifty barrels sold at Arica, was willing or unwilling to have taken any of the plaintiff's flour as part of the quantity he wanted. To fix liability on the appellee in this aspect of the case, could only be done by drawing an inference against his interest and [**40]  duty, when there is nothing in his management of the cargo, up to that time, to show that he was not governed by a desire to promote the interests of all concerned. Flour is sold by the brand it bears, and there is no evidence that the purchaser at Arica wanted any other than the particular kind that he bought, and the plaintiff's flour was not of that brand. Besides, this 

 [*141]  prayer imputes to the appellee not only gross negligence, but want of good faith to the owners of the cargo, against the presumption that an agent has done his duty until the contrary appears.  Corner vs. Pendleton, 8 Md. Rep., 337.
The motive attributed to the appellee, by the fifth prayer, for not selling all the flour at Arica, is not warranted by the proof, but in conflict with the only evidence on the point. Wysham proved that the appellee's reason, as he informed him at the time, for not selling there at less than nine dollars and-a-quarter, was, that from information received, he expected to obtain ten or ten and-a-half at Lima. In the face of this proof, and in the absence of any sustaining the theory of the prayer, it was impossible for the jury to have found that he [**41]  did not sell at Arica, because of an unwillingness to reduce the price of his own flour to an average less than he could obtain for the quantity which he actually sold.
In addition to the above views all the preceding prayers proceed, in part, on an assumed violation of duty which the law does not infer, denying to the appellee any discretion whatever; whereas, as we have seen, the doctrine is well settled, that persons in his capacity are often compelled to act in a manner which the law does not sanction, if access can be had, or information given to, and directions received from, the principal. If the law were otherwise, it is difficult to imagine that such agencies would be accepted at all, imposing liability for mere errors of judgment, committed in the honest exercise of discretionary powers.
We entertain, however, a different view of the propositions presented by the sixth prayer. The ship arrived at Callao on the 5th or 6th of October, as proved by Wysham and Dartnell. The appellee wrote, on the 13th, that the flour had kept perfectly sweet, that he had sold it at $ 8, and that the vessel also was then disposed of. Wysham proved that the vessel was sold to be delivered [**42]  in ten days, and that after that sale the defendant caused all the flour to be landed on the mole, when there was no storage for it, and that it was injured by such exposure, though, on this point, and as to the condition of the flour, at the time of arrival, there was conflicting evidence. 

 [*142]  One of the witnesses also stated that sample barrels were sent ashore which were tried, and the flour pronounced sour, and that the appellee had all the flour delivered on the mole, after he knew that the first purchase had been thrown up. Now, if the appellee had not discovered, on the 13th, that the flour was damaged--and that he had not is clear from his own letter--the inference is that he sold the vessel before the cargo had been landed, and, (according to the evidence of the mate,) that it was landed after he knew its unsound condition, and before he had made a second sale, or obtained storage for it. Upon the state of case submitted to the finding of the jury by this prayer, if the appellee landed the flour, "in order that he might be ready and prepared to deliver the vessel pursuant to the terms of the contract of sale," and the flour was injured by such exposure on the mole, [**43]  the plaintiff was entitled to recover for the loss resulting from such disposal of the cargo. Upon this hypothesis there was no excuse for landing the flour at all without having first made sale of it, or obtained proper storage; and the case is stronger against him, if, as he wrote, and Wysham states, the flour was sweet. The prayer ascribes a motive for the landing, to be found by the jury, inconsistent with the interest of the shippers, and merely looking to the interest of the ship-owners, and which, if true, was, to the extent of the damage thereby incurred, a sacrifice of the interest of the cargo to that of the owners of the vessel. Abbott, 243. We have seen that the ship may be sold under pressing emergencies, but there was no such necessity if the hypothesis of the prayer be correct. The counsel for the appellee adverted to the letter of Wysham & Co., in which it is said, "it is possible you may sell the vessel," for the purpose of showing that the plaintiff knew, at the time of the shipment, that a sale was in contemplation. This letter had reference to a return cargo; we suppose that it was never imagined by any of the parties that the vessel would be sold before the [**44]  flour was disposed of. The ship may always be sold if the owner or the master choose to violate a duty. It cannot be prevented. But the power to sell is subordinate to the claim of the cargo to be carried and delivered according to 

 [*143]  the projected voyage; and that the owners of this cargo knew that the vessel might possibly be sold, can have no effect upon their claim for damages, if they incur loss by the sale. The obligation to carry the cargo is, generally, paramount to every other duty, and yields only to that "necessity which supersedes all human laws." Abbott, 243. True, the appellee had an interest in selling the ship, but he had also incurred an obligation to the plaintiff; and, as was said by Lord Ellenborough, in 1 Campbell 527, "No man should be allowed to have an interest against his duty."
According to the rules governing the case as applied in disposing of the first prayer, we think there was no error in refusing the seventh. There was nothing to show that the conduct of the appellee, at Arica, was different from what a prudent and judicious owner would have done under the same circumstances, and with the same advices before him.
If, as stated [**45]  in the eighth prayer, the defendant, not having found a market, had the flour landed, and placed, and left on the mole at Callao; and if it became damaged, before a sale could be effected, by reason of exposure there for six or eight days, it is very clear that he was liable for the consequences. This, however, was for the jury, about which there was evidence on either side.
We think the ninth prayer was properly refused. It is merely speculative as to losses that might have resulted from landing sour flour in violation of the local laws. But, as the flour was not seized and condemned under these laws, the plaintiff cannot be said to have suffered by an act subjecting the flour merely to the risk of being taken and destroyed, in the absence of proof that such violation of the law did place the defendant in the power of dealers in the article, whereby loss was actually incurred by the plaintiff.
The tenth, eleventh and twelfth prayers relate to the expenses of landing, reshipment and freight of the flour that was sent to Paita. It was the duty of the ship to have carried the flour to a market, or until finally landed under circumstances authorising a departure from [**46]  the original contract, which, as we have said, had not occurred at Callao. Consequently the plaintiff 

 [*144]  was not liable for the freight from Callao to Paita. This prayer leaves out of view the sale of the vessel; but as the carrying of the cargo, according to the contract, is the master's first duty, it lies on the defendant to excuse himself for having forwarded part of the flour to Paita, on another vessel, and he cannot charge for such freight.
The eleventh and twelfth prayers ought also to have been granted, upon the hypothesis of the tenth. Until the flour was sold it ought not to have been landed. The landing without a previous sale, was such an act as to relieve the consignor of the flour from all liability for the charges of landing and reshipment.
The thirteenth prayer seeks to charge the appellee, as supercargo, for a conversion of the flour, by having sent it to Paita, for sale by another person. We have seen that emergencies may arise to render a deposit of the cargo necessary, as, for example, the sale of the ship, or the want of a market, because a sale cannot be made if a purchaser cannot be found; and other circumstances may arise justifying [**47]  this course; and if the consignee acts in good faith, with reference to his predicament at the time, he ought not to be censured. The general rule is that the trust cannot be delegated, but this is not without exceptions. "The authority is exclusively personal, unless, from the express language used, or from the fair presumptions growing out of the particular transaction, or of the usage of trade, a broader power was intended to be conferred on the agent." Story, sec. 14. Where the consignee is master, and this is known to the shipper, he cannot wholly abandon the latter duty to discharge that of supercargo. He must act in both, as far as possible, with reference to the interest of the respective principals.  1 Johns. Cases 174, Day vs. Noble. 2 Pick. 615. There is nothing stated in the prayer to excuse the consignee; but it goes upon the ground that he abandoned his trust to another, merely on finding that the flour could not be disposed of at Callao. In this view, we think, the first branch of the prayer, if offered alone, might have been granted. But it went further, and asked to recover the value of the flour, if the jury found that some [**48]  other person assumed to sell it in 

 [*145]  the absence of the defendant, and without his knowledge or approval of the terms of sale. Of course such a sale would not divest the title of the plaintiff; but it does not follow that the defendant would be liable, because another person wrongfully, and without his privity, had assumed authority to dispose of it. As an entirety the prayer was faulty and properly refused.
It follows that, dissenting from the rulings below on the 6th, 8th, 10th, 11th and 12th prayers, the judgment must be reversed, and a procedendo ordered.
Judgment reversed and procedendo ordered. 

6 of 31 DOCUMENTS 

RICHARD B. DORSEY, Exc'r of WM. H. DORSEY, vs. ARABELLA DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 31; 1856 Md. LEXIS 4 

JUNE, 1856, Decided 

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

In this case a petition was filed in the court below by the appellant, the widow of William H. Dorsey, deceased, to ascertain whether under the will of her husband, which was duly admitted to probate, she took the personal property thereby bequeathed absolutely, or only a life estate therein. This will was in the shape of a letter written by the testator to the appellant, his father and executor, and is set out in full in the opinion of this court.

It was asserted by the petition, and admitted in the answer of the executor, that he had delivered to her as her absolute property the furniture mentioned in the will. The petitioner then proved that this will, with the insurance policies mentioned in it and other private papers, was enclosed in a package and left by the testator with Keighler, his partner, the day before he left Baltimore, with his wife, for the west; that he so left Baltimore on the 7th of April 1854, on the business of his firm, the extent of his journey being to the western borders of Missouri; that he died on his return from this journey, in the city of New York, on the 1st of August 1854; that the Mr. Arthur [**2]  mentioned in the concluding clause of the will is the father-in-law of the testator, residing in Missouri, with whom also the appellee now resides, and that the testator's mother resides in Baltimore.

The petitioner further offered to prove by Keighler, that the probable value of the testator's claim against the firm of which he was a member is, and was at the execution of the will, $ 2000, (the executor in his answer claimed it was not less than $ 6000,) as a fact or circumstance to be taken into consideration by the court in construing the will, but the court excluded the testimony as inadmissible. The court then decided that the widow was entitled absolutely to the entire residue of the testator's personal estate, and passed the order set out in the opinion of this court, from which the executor appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

A testator bequeathed "all his property, both real and personal," with certain specified exceptions, "to his wife;" the furniture she was to dispose of as she saw fit, "and also all the rest of the property," and then in the concluding clause of the will added: "In case of the death of both myself and wife, all the property and effects before mentioned as belonging to my wife shall revert to my mother." The wife survived the testator. HELD, that under this will the wife took an absolute estate in the property bequeathed to her.  

COUNSEL:
Vernon Dorsey and Robert J. Brent for the appellant.

The first question in this case arises upon the will. The testator bequeathed all his property, real and personal, to his wife, with the exception of "$ 1250 to each of his sisters and his mother," and the sums necessary to pay certain specified debts. He then describes the property [**3]  belonging to him, and adds, "the furniture my wife may dispose of as she sees fit; and also all the rest of the property." If the will had gone no further the widow would clearly have the absolute estate, subject to the debts and legacies. But the material inquiry arises on the final clause: "In case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother after paying," &c. It seems to us that upon the whole context of this will the widow has but a life estate, with a power to dispose of the property either during her life or absolutely, but with a remainder in all to the testator's mother. We maintain this proposition upon the very analogous case of Smith vs. Bell, in 6 Pet., 75, decided by Chief Justice Marshall upon a similar will, in which all the authorities are reviewed by that most distinguished judge. The very fact that he gave his widow the jus disponendi illustrates our proposition, and demonstrates his own belief that he had not given her an absolute estate by the previous words under which she now claims. Again he says, that at the death of his wife "all the property before mentioned as belonging [**4]  to my wife shall revert to my mother." How could this reverter take place at the death of the widow unless he designed her to take but a life estate? The will then is clear and unequivocal upon its face, and the mother is the ultimate beneficiary of the whole property, subject to the debts and legacies.

But it is supposed our construction may be prevented by the introduction of the parol evidence stated in the record. In the first place we maintain, that no parol evidence can be received to alter or affect the clear and unmistakable intention of the testator as gathered from the whole context of the will. 5 H. & J., 155, Carroll vs. Norwood. 7 G. & J., 127, Negro Caesar vs. Chew. 5 Md. Rep., 305, Walston vs. White. 2 Jarman on Wills, 468. And, secondly, we maintain that the parol evidence, if admissible, in no way tends to alter or change the construction of the will or the meaning of the testator. The idea of the appellee seems to be, that as the testator left on a distant journey some two days after the date of his will and took his wife with him, he merely intended to give the property to his mother in case both he and his wife died on the journey. But there is nothing in the [**5]  parol evidence or on the face of the will so to limit its effect and operation. The mere fact, as proved, that he left for the west two days after the execution of the will and took his wife with him, does not show that at the date of the will he contemplated taking his journey or taking his wife with him. But even if he had on the face of the will recited that he made it in contemplation of that journey, the will could not be considered as conditional upon his dying during the journey, nor could its construction or effect in any way be affected by such a recital. 9 Pet., 174, Tarver vs. Tarver. Moreover this is admitted to be a testamentary paper, therefore the words "in case of my death," used at the commencement of the will, had reference to his death at any time. If this interpretation is given to these words at that place, it must also be given to them at the commencement of the last clause, where he uses precisely the same language, "in case of the death of both myself and wife." He uses the same words in both cases, and if in the first he did not intend to restrain the operation of the will to the contingency of his death at any particular time, so in the last, he did not intend [**6]  to restrain it to the contingency of the death of his wife at any particular time, but intended to convey the same meaning as if he had in the respective clauses used the words "after my death," and "after the death of both myself and wife." The will on its face shows that he contemplated that the "reverter" of all the property to his mother should take effect unconditionally, "after the death of himself and his wife," whenever those events occurred, and he places the order of their deaths in such a way as to show that he expected his widow to die after him. We see nothing in the parol evidence to change the plain and palpable construction of this will so as to deprive the mother of her estate in remainder. It certainly cannot be maintained that the delivery of the furniture to the widow as her absolute property can affect the rights of the remainderman, or that of the executor to retain and invest money belonging to the remainderman.

If we are right in these views, the court below erred in deciding that the widow was entitled to the payments of the money as her absolute property. Such payments, if ordered at all, ought to have been only on adequate security being given for the [**7]  benefit of the remainderman, as the life-tenant is proved to reside in Missouri. But we maintain, the order should be to invest the money and pay over the income or dividends only to the life-tenant. Act of 1798, ch. 101, sub-ch. 10, sec. 11. 1 Story's Eq., sec. 603. 2 Do., secs. 843 to 846. 6 G. & J., 196, Evans vs. Iglehart. 12 Do., 276, Clagett vs. Crawford. 5 Md. Rep., 235, Miller & Mayhew, vs. Williamson, et al.

William George Brown for the appellee, stated, that in the event of a reversal he wished the opinion of this court upon the admissibility of the testimony of Keighler, rejected by the court below, and to show its admissibility, as one of the facts and circumstances surrounding the testator at the date of the will proper to be considered by the court in placing a construction upon the language of the will, cited: 1 Greenlf. on Ev., sec. 287, note 3, and cases there cited, and Wigram on Extrinsic Evidence, 11 to 14. He then argued:

1st. That the main motive which governed the testator in framing the letter admitted to probate as his will, was to provide for the occurrence of death upon the particular journey, full of hazard, which his wife and himself were about [**8]  to take, and in the event of his death it was his intention to devise and bequeath to his wife absolutely the residue of his property, provided she survived him.

2nd. That if the language of a part of the will were capable of receiving two constructions, the court would place such a construction upon the ambiguous clause as to make it conform to the general intent, and to reconcile it with other provisions of the will which are free from ambiguity; but it is contended there is no ambiguity in the provisions of this will.

3rd. That the general intent will prevail in the construction of a will over a particular intent, if there should be any conflict between them. And as it is sufficiently apparent that the testator's chief and main intent was to secure, in proportion to his means, a competence to his wife, by leaving her all his property after payment of his debts and certain legacies to his mother and sisters, this intent should be gratified, and a construction should not be adopted by which his wife would receive only the interest of $ 3500 and what may come from the two firms for her life, not much more than the interest upon the sum which he had received from her father.  [**9]  

4th. That the intention of the testator is manifested by the clause, which, in case of his death, bequeaths to his wife all his property, both real and personal, with certain specified exceptions: and again, in the latter part of the same provision, declares that "the furniture my wife may dispose of as she sees fit, and also all the rest of the property." But it is contended by the appellant that this provision is controlled by the last clause of the will, and that thereby the estate of the wife is cut down to a life estate, with remainder absolutely to the testator's mother. The clause is: "In case of the death of both myself and wife, all the property and effects, before mentioned as belonging to my wife, shall revert to my mother." The difficulty arises from the fact that the testator has applied a term of contingency to the death of his wife, which is an event certain to take place, and to satisfy this term it is necessary to connect with her death some circumstance, in association with which it is contingent; that circumstance is naturally the time of its happening, and such time is necessarily the death of the testator. Hence it is an established rule, that where a bequest [**10]  is left A, and in case of his death to B, if A survive the testator he takes absolutely. The last clause of the will then, even standing by itself, should be construed to mean, that if the testator's wife died before him his mother should take the share left to her, but if the wife survived, then she is to take absolutely. But when this clause is taken in connection with the rest of the will all doubt ceases, and the wife surviving her husband becomes entitled to the residue absolutely, and not as a mere life estate. 5 G. & J., 101, Hill vs. Hill. 1 Roper on Legacies, 406. 2 Strange, 1261, Lowfield vs. Stoneham. 4 Ves., 161, Hinckley vs. Simmons. 5 Do., 806, King vs. Taylor. 6 Do., 557, Turner vs. Moor. 8 Do., 12, Cambridge vs. Rous. Ibid., 410, Webster vs. Hale. 18 Do., 291, Ommaney vs. Bevan. 1 Younge & Col., 492, Clarke vs. Lubbock. 2 Eq. Cases Ab., 344, Trotter vs. Williams. 11 G. & J., 328, Young vs. Robinson. 4 Barn. & Ald., 574, Wright vs. Stephens. 7 Simons, 40, Grigan vs. Baines. Such a remainder would be void. 1 Jarman on Wills, 665, note 1.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*37]  LE GRAND, C. J., delivered the [**11]  opinion of this court.
This is an appeal from an order of the orphans court of Baltimore city, passed the 6th day of October 1855, directing the appellant, as executor of the last will and testament of William H. Dorsey, deceased, to pay over to the appellee a certain sum of money which he has in hand, and also "hereafter from time to time pay in like manner over to said Arabella Dorsey, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be."
The questions involved in the case arise under the following letter of William H. Dorsey, which was admitted to probate as a testamentary paper:
"Balto., April 5th, 1854.

R. B. DORSEY, ESQ'R,
Dear Sir:--In case of my death, I desire you to act as my executor, and wind up my affairs according to the following directions:
All of my property, both real and personal, I bequeath to my wife, with the following exceptions, viz:--To my mother and each of my sisters I leave $ 1250 cash, to be invested for their benefit in some safe and productive stock;  [**12]  six hundred dollars to be applied to the payment of a note for $ 600 to Johnston & Bros., due August 12, and $ 110 to pay a note to G. D. Clarke, the jeweller, for a watch: these are all the debts I owe, except small accounts about town. My effects consist of an interest in the houses of Duval, Keighler and Dorsey, and Duval, Rogers & Co., of eight and-a-half per cent. of the profits of each house; the proceeds of two policies of insurance in the New York Mutual, for $ 7500 and $ 2500; the furniture of the room in Courtland street, and some 450 acres of land in Clay, Clinton and De Kalb, counties, Missouri.
The furniture my wife may dispose of as she sees fit, and also all the rest of the property. By the articles of co-partnership, 

 [*38]  upon the death of a partner, those who remain are bound to wind up the concern as speedily as possible.
In the case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $ 4000, being the amount, principal and interest, I have received from him.
Yours, truly,
W. H. DORSEY."
On the part of the appellant it is insisted, that the property [**13]  given by this paper only conferred on the appellee a life estate, whilst on the part of the appellee, (and as was adjudged by the orphans court by the order appealed from,) it is held that the bequest was absolute without remainder over to any one.
In the view of the case which we have, it is unnecessary we should discuss the two other questions presented in the argument, namely, the right of the appellee to introduce parol evidence to show the circumstances attending and surrounding the testator; and the obligation devolving on the orphans court to invest in some safe and productive fund the interest bequeathed, provided the appellee only takes a life estate.
The case principally relied upon by the counsel for the appellant to support his theory of the case, is that of Smith vs. Bell, 6 Peters 68. It is a case, in some particulars, analagous to the one now under consideration. The clause in the will which gave rise to the controversy, and which was discussed and decided by the court, was in these words: "I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts,  [**14]  legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin."
There, as here, the question was, what kind of estate did the wife of the testator take? The first part of the clause gave her absolutely the property; but the difficulty of interpretation arose from the use of the words, "the remainder after her decease to be for the use of the said Jesse Goodwin." To 

 [*39]  reconcile these inconsistent members of a sentence, and, at the same time, to give efficacy to the intention of the testator, was the office of the court. This was accomplished by giving some meaning to every member of it. If Jesse Goodwin was to enjoy "the remainder after her decease," then the first part of the clause must be so construed as to limit the estate of the wife to that of her life. This Chief Justice Marshall considered to be the true meaning of the language employed by the testator, deducing the conclusion, in some degree, from the character of the relation in which the wife and son stood to him. He held it to be [**15]  natural and proper that the husband and parent should be anxious to give some evidence of his regard and solicitude, both for the wife and the son, and, availing himself of the force of this natural instinct of the human mind, he felt authorised so to interpret the language of the doubtful clause as to give every part of it some meaning, and to the whole that meaning which common sense would impute to the action of a rational being. This is, in substance, the decision of the case; and one, as Judge Marshall conclusively shows, fully justified by those previously had. We adopt the principles of that case and apply them to the one in hand.
The first member of the second paragraph of the paper is in these words: "All my property, both real and personal, I bequeath to my wife, with the following exceptions," &c., and clearly gives the wife an absolute estate. About this there cannot be a doubt; but, if a doubt were possible, the first member of the third paragraph would remove it. In it he says: "The furniture my wife may dispose of as she sees fit, and also all the rest of the property." These portions of the paper, taken together, make the meaning of the testator too obvious for [**16]  mistake. But, it is said, their apparent meaning is controlled by the following, which is the concluding part of the paper: "In case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $ 4000, being the amount, principal and interest, I have received from him."

 [*40]  Now the question is, what is the meaning, as here used, of the words, "In case of the death of both myself and wife?"
A few passages from Roper on Legacies will satisfactorily dispose of the inquiry.
At page 406 of the 1st Vol., it is said: "That wherever a testator has defectively expressed the event upon which a legacy shall go over, yet, if his meaning can be discovered from a reasonable construction of the whole will, the court will effectuate the intention when it is practicable." As to the event to divest a legacy when thus described, "in case of the death of the legatee," without annexing to those terms his dying within any particular period, the same author, at the page above given, remarks: "The words in which such a bequest over is expressed, neither have nor by construction [**17]  have they received a precise and definite meaning, in which they must be uniformly understood. The expression itself is incorrect, as it applies words of contingency to an event which is certain. No person can with propriety speak of death as a contingent event, which may or may not happen. When therefore a testator so expresses himself, the question is, what he means by that inaccurate expression. He may perhaps have had some contingency in his mind; as that the legatee was dead at the time he was making the will, or might die before the testator, or before the legacy should be payable, and then the inaccuracy consists in not specifying the period to which the death was to be referred. He might have meant to speak generally of the death whenever it might happen, and then the contingent or conditional words must be rejected, and words of absolute signification must be introduced; and, accordingly, in every instance in which these words have been used, courts have endeavored to collect from the nature and circumstances of the bequest, or the context of the will, in which sense it is most likely this doubtful and ambiguous expression was employed." On page 407, the author, sustained [**18]  by the numerous authorities which he cites, thus applies the rule: "It is," says he, "a settled rule upon this subject, that if a legacy be given to A generally, "and in case of his death" to B, those expressions, unexplained by the 

 [*41]  context of the will, are to be confined to the event of death happening during the life of the testator; so that, if the legatee survive him, the legacy will immediately vest, discharged of the executory bequest to B; and parol evidence that the testator used the words in a different sense cannot be admitted."
The clause relied upon by the appellant falls directly within the principle quoted and illustrated in the above citation from Roper. Besides, which, we are of the opinion that the whole character of the paper shows it was the intention of the testator to give an absolute estate to his wife if she survived him, and only to confer an estate on his mother, in the event of his wife not surviving him.
Order affirmed, with costs. 

7 of 31 DOCUMENTS 

JAMES OWINGS vs. JACOB JONES, by his next friend, MARY JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 108; 1856 Md. LEXIS 12 

JUNE, 1856, Decided 

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

This was an action on the case, brought by the appellee against the appellant, to recover damages for injuries received by falling into a vault, appurtenant to the property of the defendant and built under the foot pavement of Bank Lane, a public street in the city of Baltimore. The plaintiff was a free colored boy, from fourteen to sixteen years of age, and sued by his mother as next friend. The pleadings are sufficiently stated in the opinion of this court.

Exception. The facts proved in the case are fully stated in the opinion of this court. The defendant asked the following instructions to the jury:

1st. If they find from the evidence that the sewer connected with defendant's property was well and securely covered before the accident complained of, and that at the time of the accident defendant was not in possession of the property, then the plaintiff is not entitled to recover, even if the jury should find that defendant had not obtained the permission of the city commissioners and approval of the mayor previous to the construction of the sewer.

2nd. That if they find that at the time of the injury complained [**2]  of defendant was not in possession of the property, having previously rented the same to Peters, as set out in the agreement of renting offered in evidence, and that Peters was in possession, then the plaintiff is not entitled to recover.

The court, (FRICK, J.,) refused these prayers, and instructed the jury, that if they find from the evidence that the sink in question was erected under the foot pavement, in violation of the ordinances of the city council, that is, without permission from the city commissioners, with approval of the mayor, and was constructed and covered in such manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it, then they are at liberty to consider the same a nuisance erected by the defendant, for the continuance of which he is responsible, provided he rented or received rent for the premises; and provided, if they find as above, they also find the plaintiff sustained the injury as given in evidence by reason of such nuisance.

To the refusal to grant his prayers, and to the instruction of the court, the defendant [**3]  excepted. The verdict and judgment were in favor of the plaintiff for $ 1300 damages, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where no question in regard to the pleadings was presented to the court below, no such question can be considered by this court.

The doing of an unlawful act subjects the doer to every consequence which flows from it.

Where property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner is not liable.

But where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable for injuries resulting from such nuisance.

Where a party sues for such injury, it is essential to his right to recover that he should prove that he could not have avoided the injury by the exercise of reasonable caution and care.  

COUNSEL:
John Nelson and David Stewart for the appellant, objected that the plaintiff does not count upon a nuisance from which the damage resulted, but upon the personal negligence of the defendant; that as long as it may be true in point of law that the allegata and probata must agree, so long will it be maintained that an action for negligence cannot be sustained by proof of a nuisance upon property not in possession of the defendant; that the declaration filed in the case assumes the averment of possession to be indispensable to a recovery, for the first count rests upon possession merely as a basis, while the second combines ownership and possession as the foundation for recovery. They then argued that the court below erred in rejecting each of the prayers offered by the defendant, as well as in the instruction given to the jury.

1st Prayer. This prayer affirms that if the jury should find, (of which there was clear evidence,) that the vault was well and securely covered before the accident complained of, it was no nuisance,  [**4]  notwithstanding the omission of the defendant in constructing it to comply with the provisions of the ordinances of the city, and that not being in possession of the premises when the accident occurred, however negligent may have been the conduct of those who were in possession, he, as landlord, was not liable in this action. This proposition is sustained by the following authorities: 4 Taunt., 649, Leslie vs. Pounds. 2 H. Bl., 349, Payne vs. Rogers. 56 Eng. C. L. Rep., 782, Rich vs. Basterfield. 4 Term Rep., 318, Cheetham vs. Hampson.

2nd Prayer. This prayer, without reference to the character of the structure, asserts the non-liability of the defendant, because he was not in possession of the premises when the accident complained of occurred. In support of this proposition we cite 3 Camp., 398, Coupland vs. Hardingham. 19 Eng. C. L. Rep., 375, Daniels vs. Potter. 3 Stephen's N. P., 2366.

3rd. That the instruction of the court was erroneous:--1st, because there was no evidence upon which the jury could have been justified in finding "that the sink in question was erected under the foot pavement in violation of the ordinances of the city council," inasmuch as there was no [**5]  evidence that Bank Lane is a public street, to which only the ordinance applies. 2nd, because there is no such evidence of the sewer "being constructed and covered in such manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it." 3rd, because it does not put to the jury the material and indispensable inquiry, whether the plaintiff used reasonable and ordinary care to avoid the injury complained of. The case of Irwin vs. Sprigg, 6 Gill, 200, is conclusive on this point. See also 2 Pick., 621, Smith vs. Smith. 11 East, 60, Butterfield vs. Forrester. 19 Eng. C. L. Rep., 411, Proctor vs. Harris. The proof on this question being that the accident occurred in the day time, in a lane with which the plaintiff was perfectly familiar, and where an accident could not well have occurred without negligence on his part, it was for the jury to decide whether he used ordinary care. Now the effect of the instruction was, that whether there was or was not such reasonable care on the part of the plaintiff, the other facts being found by the jury, the plaintiff was [**6]  entitled to recover, which is clearly erroneous. To show that the burthen of proof on this point was on the plaintiff, we refer to 12 Pick., 177, Lane vs. Crombie, and 6 Cowen, 191, Harlow vs. Humiston. And as to the difference in cases of accident by day and by night as to the rule of ordinary care, we refer to 2 Eng. C. L. Rep., 350, Weld vs. The Gas Light Co.

J. N. Steele, S. H. Tagart and James Malcolm for the appellee, said that the objection based upon the pleadings in the case is not tenable, because no question was made in reference to the pleadings in the court below, and therefore under the settled law of this court no such question can be raised here. They then argued:

1st. That the first prayer of the defendant was properly rejected:--1st, because it does not submit to the jury the question, whether the sewer was so covered that the ordinary and necessary cleansing of it could be accomplished without rendering it unsafe. 28 Eng. C. L. Rep., 220, King vs. Pedley. 23 Do., 52, King vs. Moore. 4 Denio, 311, 317, Fish vs. Dodge. 2nd, because the construction by the appellant of a sewer, with its mouth opening into the foot pavement of a public street, in violation [**7]  of the ordinances of the city, was an illegal act, for which he was responsible in damages to any person who might be specially injured thereby while in the customary and legal use of the street. 6 Gill, 200, Irwin vs. Sprigg. 31 Eng. C. L. Rep., 92, King vs. Ward. 9 Do., 407, Greasly vs. Codling. 3rd, because the mode in which the sewer was covered, which under this prayer was to shield the defendant from responsibility, if, in the opinion of the jury, the sewer was well and securely covered, was itself illegal and in violation of the express provisions of the city ordinances on the subject, and was therefore in itself a ground for the liability of the appellant for any special damage resulting from it.

2nd. That a sewer constructed under a public street with its mouth in the foot pavement thereof, and without the permission of the city commissioners and the approval of the mayor, and so covered as to be unsafe to passers by, or liable to be rendered unsafe in the proper and ordinary opening of it for the purpose of cleaning it, is a nuisance, and he who lets premises with such nuisance upon or connected with them, is liable for the continuance of the same to any person who may [**8]  be specially injured thereby. 5 Coke's Rep., 101, Penruddock's case. Cro. Jac., 555, Brent vs. Haddon. 2 Salk., 460, Rosewell vs. Prior. 4 Term Rep., 320, Cheetham vs. Hampson. 7 Mees. & Wels., 455, Thompson vs. Gibson. 77 Eng. C. L. Rep., 133, Alston vs. Grant. 10 Mass., 74, Staple vs. Spring. 6 Gill, 425, Smith vs. State. 3 Denio, 306, Waggoner vs. Jermaine, and the cases cited under the first point.

3rd. That none of the objections urged against the instruction given by the court are valid. The first is answered by ordinance of 1846, No. 25, in force when the sewer was constructed, and which provides the mode in which vaults shall be covered "on the footways in the several streets, lanes or alleys of the city." As to the second, we say there was sufficient evidence for the jury to decide whether the sewer was constructed and covered in such a manner as to be unsafe for passers by in its ordinary condition, or that it was, from its construction, liable to be rendered unsafe in the necessary opening of it for the purpose of cleaning it. In reference to the third objection, it will be observed, that it was not urged in the court below, and is now raised for the [**9]  first time. But the evidence shows there was no ground for such a defence. The proof is that the sink was in the foot-pavement very near to the door of Dr. Davis' carriage-house, and that it was necessary for the plaintiff to pass and repass over the mouth of the sewer. It was left the night before the accident with a broken and insecure covering upon it, and the plaintiff was found the next day in it crying for help, with his leg broken by the fall, and no evidence was offered by the defence of any want of care or caution on his part. It is submitted that this evidence made out a prima facie case for the plaintiff, and that there was nothing in it from which a rational mind could come to the conclusion that the accident was caused by want of care on his part. But the objection assumes, that the jury were directed that upon finding certain facts the plaintiff was entitled to recover. This is not so. It only tells the jury that upon certain facts they are at liberty to find the sewer a nuisance, for the continuance of which the defendant was responsible if the plaintiff was injured by it. Given in this form, it did not shut out the defence before the jury, that the accident was caused [**10]  by the plaintiff's want of care. It did not pass upon that point, and the counsel for defendant were at liberty to ask for an instruction upon it, or to argue it before the jury without an instruction. Further, the closing words of the instruction are, that the jury must find that the plaintiff sustained the injury "by reason of the nuisance." The plaintiff was bound by the instruction to prove that he sustained the injury, by reason of the nuisance, and, consequently, not by his own want of care or caution.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*114]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the Superior Court of Baltimore city.
The action was brought in the court below, to recover damages for an injury alleged to have been sustained by the plaintiff from falling into a hole or vault opened under the pavement on a public street in the city of Baltimore, appurtenant to a lot fronting on said street, belonging to the appellant.
The declaration contained two counts, the first of which alleged, that the defendant (appellant) being possessed of a certain messuage, &c., "wrongfully and  [**11]   unjustly made and opened a certain hole leading to the vault and sink, under the said street, belonging to the same messuage and premises, and unjustly and wrongfully placed and kept a weak and insufficient covering upon the hole leading to the said vault and sink, by means and consequence of which said wrongful, unjust and negligent, and improper conduct of the said defendant," the said plaintiff "necessarily and unavoidably slipt and fell into said vault," &c.
The second count alleged, that the defendant being "the owner and possessor" of the messuage referred to, situate on the public street therein described, and upon which there was "a certain hole opening into a certain vault or sink under said street, which the owner and possessor, and in the possession, 

 [*115]  occupation, use and enjoyment of the said messuage, "opened or caused to be opened, and negligently closed the said vault or sink and the said hole," by means whereof, &c., the plaintiff "necessarily slipt and fell into the said vault," &c.
The defendant below plead not guilty, upon which the issue was joined.
At the trial the plaintiff offered evidence by the witness [**12]  Sprague, that defendant was the owner of the messuage described in the declaration; that he first knew the property in 1850, when he rented a room in the house from William C. Peters. And by Amos, another witness, that he was one of the hands who cleaned the sewer in question with three other hands; that after cleaning it, in putting back the stone covering its mouth, said stone broke in half, although they were careful in letting it down; and by Andrews, that he had hold of the stone, and when letting it down he let go of it to avoid mashing his fingers, and it then broke. That when taking it up it was so firm that four men had to raise it with picks. It was about 2 1/3 inches thick and 2 1/2 feet square. A plank was put over it, but not more than a foot wide. That the stone had not then fallen in; that witness went back in the afternoon, when there was neither plank nor stone over the sewer, and that a new stone was brought about two hours afterwards. This was in August 1852.
The plaintiff further offered in evidence by Lindley Ellicott, that on the evening of some day in August 1852, hearing screams from Bank Lane, he proceeded to this sink, in which he found the plaintiff,  [**13]  who was withdrawn therefrom with ropes, and that there was no plank over the hole. That this occurred between five and seven o'clock in the evening.
He likewise offered evidence by said witness, that the plaintiff at this time was in the employment of Dr. Davis, who resided on St. Paul's street, whose carriage-house door was very near to this sewer, which was on Bank Lane, and it was necessary for the plaintiff to pass and repass over the vault of the sewer, and that the pavement under which it was opened was very narrow.
He then offered evidence by Drs. Smith and Jenkins of the nature and extent of the injury inflicted upon him.

 [*116]  The defendant, in the progress of the cause, offered in evidence the agreement of lease between himself and W. C. Peters, by which it appeared the property was leased for the term of seven years, Peters agreeing to pay therefor a certain annual rent; but in no manner stipulating to keep the demised premises in repair, nor to cause to have kept cleaned the sink. He also proved that possession of the property was taken by Peters between the months of January and April 1850.
The plaintiff gave in evidence the ordinances of the mayor and city [**14]  council of Baltimore, No. 49 of 1838, and No. 16 of 1850, and having proved the vault was made in 1849, rested his case.
On this state of proof the defendant submitted to the court two prayers, both of which were rejected, and in lieu of them an instruction was given by the court of its own motion.
Before proceeding to notice the objections urged to the action of the court in regard to the instructions asked and given, we will notice one founded on the pleadings. It is said on behalf of the defendant, that the counts in the declaration relate to the alleged negligence of the defendant, and not to an injury arising from a nuisance, and therefore, under the proof in this cause, there could be no recovery. In reply to this objection, it is but necessary to say, there is no question in regard to the pleadings presented to us by the record. In the cases of Leopard vs. Ches. & Ohio Canal Company, 1 Gill 222; Stockton vs. Frey, 4 Gill 406; Brooke vs. Waring, 7 Gill, 5, and in the case of Dorsey vs. Dashiell, 1 Md. 198, it is distinctly laid down, that where no question in regard to the pleadings [**15]  was presented to the court below, none can be considered by this court. In the case now before us neither the prayers of the defendant, nor the instruction given by the court, make any allusion to the pleadings, and, consequently, under the decisions to which we have referred, they cannot now be considered.
The ordinances of the mayor and city council of Baltimore, already referred to, specify the manner in which vaults shall be constructed, and that permission to construct them shall be first obtained from the municipal authorities.

 [*117]  It was not pretended at the trial below, nor has it been before us, that there had been a compliance with the requisitions of the ordinances; but, it is contended, as it was in the Superior Court, that this circumstance cannot, in anywise, affect the defendant in this proceeding. We think otherwise. The doing of an unlawful act subjects the doer to every consequence which flows from it. This is a principle of universal operation, and founded in good sense and public justice. He stands in a different light from one who does a legal act but does it so imperfectly that it may occasion injury. In the one case there is a positive and reckless [**16]  contempt and defiance of the commands of the law, whilst, in the other, a mere carelessness, which, however culpable, is free from the charge of wilfulness.
The first prayer of the defendant is based on the idea, that if the jury should find from the evidence the sewer was constructed well and securely before the accident, and that the property at the time of the accident was in the possession of another than the defendant, then there can be no recovery in this case. The second proceeds on the hypothesis, that if the jury shall find the defendant had previously to the accident leased the premises, and at the time of the occurrence it was actually in the possession of another, then the defence is complete, notwithstanding all other circumstances in the cause.
A careful examination of the authorities satisfies us there is no foundation for either of the prayers. We have consulted them in the original reports, but inasmuch as they are very clearly brought together and discussed, both by court and counsel, in the case of Rich vs. Basterfield, 4 Manning, Granger & Scott, (56 Eng. Com. Law Rep., 784,) we will content ourselves with a reference to that case.  [**17]  
After a full review of all the cases, and that too after a second argument, we understand the court to deduce, at least, the two following principles from the numerous adjudications to which reference is had:--First. That where property is demised, and at the time of the demise it is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happen during such possession, the owner 

 [*118]  is not liable; but, Second. That where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of possession, he is liable.
We are of opinion, however, that the instruction of the court, actually given to the jury, was defective, in not requiring the jury to find that the plaintiff could not have avoided the accident by the exercise of reasonable caution and care. This is essential to the right of recovery of the plaintiff.  Irwin vs. Sprigg, 6 Gill, 200.
Judgment reversed and procedendo awarded. 

8 of 31 DOCUMENTS 

J. DIXON ROMAN, and others, vs. HENRY STRAUSS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 89; 1856 Md. LEXIS 53 

DECEMBER, 1856, Decided 

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

This was an appeal, taken by the appellants after filing their answers, from an order of the court below, (KREBS, J.,) granting an injunction upon a bill filed by the appellees, the allegations of which are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Upon an appeal from an order granting an injunction, the propriety of the order is to be determined by the bill alone, without looking to the answer subsequently filed.

A party entitled to a right of way over a street or a road, may be protected in the enjoyment thereof by an injunction restraining the erection of obstructions thereon.

But in a bill for such an injunction, the mere allegation of irreparable mischief from the acts complained of, is not sufficient; the facts must be stated, to show that the apprehension of injury is well founded.

A bill, alleging that an alley, over which the complainants are entitled to a right of way, is the only reasonably convenient mode of reaching their property and place of business, the streets binding thereon being already rendered nearly impassable by the rail road tracks laid upon them, and that the defendants are about to obstruct this alley by laying a rail road track across it, by which the complainants will be subjected to daily irremediable damage, is sufficient to warrant the granting of an injunction to prevent such obstruction. 

COUNSEL:
Cornelius McLean, for the appellants:

The bill does not make any case for an injunction. It does not show any public street or alley. The only right the complainants have, is, that an alley shall at some time or other be laid out, and the deed to them from the Ellicotts, under whom both parties claim, calling for an alley. In point of fact none has as yet been laid out, and by an examination of a plat of Baltimore, the court will see, and the contrary is not alleged, in the bill, that there is no public alley in the place designated. The bill alleges that the appellants own the property west of the complainants. They, therefore, are the sole owners of all the rest of the alley; no person being interested but themselves and the complainants. They, therefore, have the same right to use the alley that the complainants have. By reference [**2]  to the map of the city of Baltimore, and the state of trade at Locust Point, both matters of public notoriety and general concern, which the court will take notice of, it will be found that to the north of the alley claimed are extensive wharves for shipping coal, admitted by the bill to be owned by the appellants. Can the court see how crossing it by rail road cars will interfere with the complainants' use of the alley? for the fee-simple is admitted by the bill to be in the appellants, and, therefore, putting the track across the alley cannot be considered a pragmatic interruption of the complainants' right. They have, therefore, only exercised their right to use the alley, as they have a right to use it in any way they please, provided they do not interfere with the use of it by the complainants.

If the complaint had been that the track was being made along the alley, only fifteen feet wide, there might be a prima facie case under the oath of the complainants; but the complaint is, that the rail road only crosses an alley in which the appellants have the same right of use which the complainants have, and the fee-simple in addition. It is not alleged in the bill, and it is not [**3]  a fact, that the track is or was designed to cross the alley at a different level or grade from the alley itself, so as to cause an embankment or deep cut; or if it was to be raised above or run under the grade of the alley, that it was designed to block up the way, by not allowing a passage under, in the one case, or over the track in the other. In all these respects the bill is defective in not showing the court the nature of the injury intended to be complained of. If I grant a right of way through my field, may I not cross it? If I grant the use of an alley to a third party, may I not use it according to the necessities of my adjoining property? The other party has no right to complain of my use, unless he is injured by it, and the onus is on him to show not only that he is or will be injured, but how he will be injured. The bill does not allege that locomotives are intended to be used in crossing the alley. The track is being made by a private individual, a mere switch to connect his property lying on the water with his property lying on the rail road, and how that can be any more injurious than if the crossing were without a rail road, is beyond my imagination to conceive.

But [**4]  how can it be an irreparable injury, as the complainants have sworn? How can this alley have been the only outlet to their property, as they have sworn? They say the place is one of great business. So it is. How came it a place of great business? By means of the rail road bringing produce of different kinds to Locust Point. Property is valuable at Locust Point by reason of its connection with the rail road. But here is an attempt by an injunction and most grave swearing, to stop the appellants from connecting their property on the water with the rail road that gives to all the property at Locust Point its value, by preventing him from making use of his own property; and without an attempt in the bill to show how the injury is to be done at all, especially without showing that it is irremediable. Rail roads traverse various streets in Baltimore, New York, and other cities. Have they prevented access to property on each side, so as to make a rear alley the only access to a lot cornering on two streets. No injunction has ever before been granted in Maryland in such a case, and injunctions have gone further in this State than any where else. The case of Shipley vs. Ritter, 7 Md. Rep.,  [**5]  415, has gone the farthest in favor of injunctions; but even there, there was no claim of right, or no admitted right, as there is in this case. There a change was to be produced in the enjoyment of the estate, and it abundantly appeared by the bill that the injury was of a character to change the enjoyment of the property of the owner. In White vs. Flannigain, 1 Md. Rep., 545, it is said, that the nature and character of the property must always be looked to, in order to ascertain whether a court of equity would interfere by an injunction or not.

Apply the principles of these cases to this, and we shall find not a shadow of right in the court below to interfere in this case. This is an alley, it is true, but it is not a public street or alley, and the persons complained of have the fee-simple and the joint use, and contemplate crossing from the rail road to the water. By this means important commercial effects can be produced, and their property brought into active employment. The injury to them must, therefore, from the showing of the bill, be great, if they are impeded or arrested by the interference of a court of equity. What can be the injury to the complainants? They swear [**6]  it will be great, and that it will be irreparable. But the court can see that the crossing will do them no injury. If the appellants had no right whatever to the use of the alley, if they were mere trespassers, the court would assume that some injury would be done. But they have a right. They have all that is not needed for the use, by the complainants, of the alley, and it is, therefore, incumbent on the complainants to show to the court how the crossing will injure the use of the alley, even as a means of approach to their property. They do not, and cannot claim the exclusive use of the alley, nor the fee-simple. It is in a commercial part of the town, where drays and wagons are, and will be used by the owners of the adjoining property, and they might as well ask for an injunction against that use of the alley.

In my opinion, this is a mere attempt to impose upon the court, by making it stretch out its arm to arrest necessary improvements until the complainants can, in their own time and in their own way, force the appellants to buy them out. It is impossible that any reasonable man owning property at Locust Point, whose value must depend on the rail road, can believe that his [**7]  property will be injured by the crossing of a rear alley in such a way as to get the benefit of the commerce, upon which the value of his and all the adjoining property depends. It is a monstrous infatuation, to say the least of the pretension, to which the court ought not to make itself a party. The bill is very defective in not showing how the road is to be made, unless, which is a fact, it was being made on a proper level, so as to preclude any allegation of the contrary. If any injury ever arises from the cars crossing the alley, it will be by their being left there. This may or will happen from wagons, carts or other vehicles. The remedy is an easy one. It would be a temporary obstruction, for which the appellants would be responsible, not because they were making an improper use of the alley, but because they were negligently using it, and subjected the other party to injury. But this does not necessarily happen. The bill does not allege that such a course will be taken, that negligence will be committed; and an injunction to prevent future negligence would be a novelty. Yet such would be the effect of this injunction. It appears to me, therefore, that the injunction ought to [**8]  be dissolved, and that an attentive examination of the bill, as to what it contains, and more especially as to what it does not contain, will bring the court to the same conclusion.

Orville Horwitz for the appellees:

The only question in this case is, whether the facts alleged in the bill are sufficient to entitle the appellees to the remedy by injunction. 6 Gill, 101, Wagner & Marshall vs. Cohen. 5 Md. Rep., 477, Alexander vs. Worthington. It is believed that this case comes, in all respects, within the principles decided in the case of White vs. Flannigain, 1 Md. Rep., 539. The appellants seem to think that in order to sustain the bill, it is necessary to show that the obstruction complained of is to a public alley, already laid out or opened. The bill shows that the appellees are using this alley, and the plat accompanying the same shows that the alley is laid out and open, and beyond the bill, according to the decisions above cited, this court cannot look; nor is the allegation in the bill and the plat inconsistent with the fact that this alley does not appear on the map of the city of Baltimore. But neither requisite is necessary; for "we hold," say the court in White [**9]  vs. Flannigain, "that where a party sells property lying within the limits of a city, and in the conveyance bounds such property by streets designated as such in the conveyance, &c., such sale implies, &c." "When a sale is made in conformity with such plan, the vendor and all claiming under him, should be bound by the lines and designations by which the property has been sold." And in the next sentence the proposition is approved, that it is immaterial whether the street is opened or not, under the authority of the corporation. In this case it appears that both the appellants and appellees claim title to adjoining property under the same parties, the appellees holding the older title. It is not admitted in the bill, as stated in the appellants' argument, that the property to the north of the alley belongs to the appellants, but it is alleged that the property to the west of the appellees' property belongs to the appellants. Nor can it be seen how it thence follows that the appellants are the sole owners of the rest of the alley, or that they own it in fee, as stated in the argument.

It would seem, then, that by the terms of the deed from the Ellicotts, and the authority relied [**10]  on, there is an implied covenant on the part of the appellants, that the appellees shall have the undisturbed use of an alley fifteen feet wide, extending from Towson to Cooksie streets, throughout its entire length, and to the "full extent of its dimensions." The allegations of the bill show that the property of the appellees is useful to them for business purposes; that there is no reasonable access to it except by the alley named, because of the rail road tracks already laid down, as shown on the plat filed; and that the proposed track will cause irreparable injury, and render their property valueless, for the reasons stated. It is easy to see how the streets binding on the appellees' lot may be so covered by a net work of rail road tracks as to render their property inaccessible over these streets; the bill alleges the fact to be so. This court will not undertake to decide that fact, sworn to, against the appellees in the present state of the case. It is easy to see, moreover, that the condition of the streets binding on the corner lot, may have been the reason why the appellees obtained the covenant for an alley from Towson to Cooksie streets. It is equally easy for the court [**11]  to see how placing a track across the alley, not only in itself, but by its ordinary and daily use, in interrupting the passage of drays and other vehicles along the alley, may entirely interfere with the enjoyment by the appellees of their easement. Is not this just such a case as would call for the interposition of equity by injunction?

This case seems to warrant an injunction on all the grounds approved in White vs. Flannigain, and in Shipley vs. Ritter. The injury is irreparable; full and adequate relief cannot be granted at law; the trespass goes to the destruction of the property as it has been held and enjoyed; and it is necessary to prevent multiplicity of suits. In White vs. Flannigain, it is said, that if in the case of Amelung vs. Seekamp, the complainant "had set out that he had no other reasonably convenient outlet, the injunction ought to have issued." This allegation is made in this case, and is shown as a necessary consequence, from the position and condition of the property. In addition, it is alleged that the property of the appellees "is used for business purposes." The court below could not have done otherwise, on the allegations contained in the bill, than [**12]  grant the injunction, and the appeal ought, therefore, to be dismissed.

There are, in the argument of the appellants, statements of facts not to be found any where in the case. It is unnecessary to comment upon them. The appellants' counsel has seen fit to attribute improper motives to the appellees. There is nothing in the case, as it now presents itself, to justify the harsh language he has used. If this argument had been made to a jury, it might be my duty to reply to this portion of it, but before this tribunal it can only be necessary to meet the legal positions he has assumed, and that, it is submitted, has already been done.  

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

OPINIONBY:
TUCK 

OPINION:

 [*96]  TUCK, J., delivered the opinion of this court.
This appeal is taken from an order of Baltimore city circuit court, granting an injunction on the bill of the appellees, and the propriety of that order is to be determined by the bill alone, without reference to the answer of the appellants, subsequently filed.  Wagner vs. Cohen, 6 Gill 97.
The bill alleges that the complainants are the owners of a lot on the north-west corner of Nicholson [**13]  and Towson streets, Locust Point, in the city of Baltimore, fronting on Nicholson street, and running back for the depth of ninety feet, to an alley fifteen feet wide, from Towson street to Cooksie street; that they are entitled to a right of way over, and to the use of, the alley; that the defendants, now appellants, claim title to the adjoining property on the west, by conveyances from Ellicott, under whom the complainants also claim, which refer to and reserve all the rights of the appellees, by virtue of their deed; that the whole of the property is situated near the water; that Nicholson and Cooksie streets, which bind on the appellees' property, are interlaid with rail road tracks, and rendered almost impassable for drays and wagons, so that the only reasonable and convenient access to their property for drays and wagons, is through the said alley by way of Cooksie street; and that the property is used for purposes of business, and as such is of great value to them, provided they are left in the free enjoyment of the easement or alley. The bill then charges that the defendants, through their agents, in violation of the rights of the complaints, and to their irreparable injury,  [**14]  are causing a rail way or rail road track to be laid directly across the alley, and nearly adjoining the property of the complainants; that thereby they will be prevented from enjoying their easement, and will be subjected to daily irremediable damage; that except through the alley, there is no reasonably convenient access to their property, and that blocking up or impeding the 

 [*97]  same, by said track and by the uses thereof, will almost destroy the value of their property; and they pray that these grievances may be prevented by an injunction.
We do not perceive how the court below could have refused the injunction. The case made by the bill is embraced by the principles established in Amelung vs. Seekamp, 9 G. & J. 468, and White vs. Flannigain, 1 Md. 525. The latter decided that a party entitled to a right of way over a street, may be protected in the enjoyment thereof by restraining the erection of obstructions thereon; and the former established the same doctrine as to roads. In both cases, however, the mere allegation of irremediable mischief from the acts complained of, is insufficient: "To satisfy the conscience of the court,  [**15]  the facts must be stated, to show that the apprehension of injury is well founded." 9 G. & J. 474. The defect imputed to the bill in that case, was that it was not charged that the complainant had no other reasonably convenient outlet from his mills; that by the obstruction a valuable portion of his customers would be driven from them. We think the facts stated in this bill sufficiently show the character of the obstruction and its consequences. If, as we must assume, the streets binding on this property are already rendered nearly impassable by the rail road tracks laid upon them, leaving the alley as the only reasonably convenient mode of reaching the property and place of business of the complainants, and if, by the rail road track which the appellants are causing to be laid across the alley, and the uses thereof, the complainants will be prevented from enjoying their easement--that is, from using the alley--which they aver to be their only reasonable and convenient outlet, thereby nearly destroying the value of their property, the objection taken to Seekamp's bill cannot be sustained as to that before us.
We cannot notice the improvements and increasing value [**16]  of the property at Locust Point, by reason of the coal trade, and the necessity for laying these tracks, as urged in the appellants' argument. This may all be so. But we are not aware that such a state of things confers on the owners of property the right to make such roads, to the prejudice of their neighbors. 

 [*98]  Courts may be supposed to possess knowledge enough of the uses of a rail road to determine that trains of cars, whether drawn by horses or steam, may have a very injurious effect on the trade and business, and on the value of property, on streets across which they may pass, though they may also be productive of much advantage; and when the irreparable damage is shown, as it is here, relief must be granted in the first instance, leaving the facts of the case to be inquired into afterwards.
The order granting the injunction will be affirmed, and the cause remanded.
Order affirmed and cause remanded. 

9 of 31 DOCUMENTS 

ADAM DENMEAD and WILLIAM DENMEAD vs. THE BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 179; 1856 Md. LEXIS 16 

JUNE, 1856, Decided 

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

The controversy in this case relates to the proceeds of the sale of a steam-engine, erected in a cotton factory, and constituting part of the motive power thereof. The property, including the land, factory and machinery, was sold by trustees under a decree in equity, reserving all question of priority as to the distribution of the proceeds for future adjudication. The appellee claimed the proceeds of the sale of this engine, under a mortgage of the land and premises, executed on the 4th of March 1841. The appellants, who were machinists, and built and erected the engine in 1848, claimed on the ground of a lien, under the Mechanics lien laws, filed on the 18th of March 1848. The chancellor (Johnson) decided in favor of the mortgagee, and from this decision the present appeal is taken. The facts of the case are sufficiently stated in the opinion of this court, and more fully in the report of the chancellor's opinion, in 3 Md. Ch. Dec., 208. 

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

The lien of the machinist upon a steam-engine built at his shop, and then carried to and put up in a factory, upon which there was a previous mortgage, is not entitled to priority over such mortgage.

Under the act of 1845, ch. 176, sec. 4, the lien of the machinist commences as soon as he begins to put up the machine, and is preferred to subsequent liens and incumbrances only, and not to those which are coeval or simultaneous. 

COUNSEL:
J. Mason Campbell and John V. L. McMahon for the appellants.

The machine is made subject to a lien by the act of 1845, ch. 176, sec. 4. That lien commences as soon as the [**2]  machine commences, just as in the case of the building of a house, "the lien of the mechanic attaches as soon as the house is begun." This is the law laid down by this court in Wells & Miller, vs. The Canton Co., et al., 3 Md. Rep., 241. When the steam-engine went to the Pocahontas factory it went with the lien on it. On any other construction of the act, giving liens on machines, the act is illusory. Machinists do not make machines to be put up on their own premises, or kept in their own possession, but to leave their possession and to be erected elsewhere. If the person who orders them can, by the single act of their removal to, and erection upon, mortgaged property, strip the manufacturer of his lien, the law would be a nullity. The chancellor's view, that because a machine is declared to be subject to a lien in like manner as buildings, therefore, a prior mortgage on the land will precede the lien on a machine, as it would do the lien on a house, is, with great respect, submitted to be wholly unsound. The house becomes part of the land, and can have no separate existence, and therefore there may be a mortgage on the subject of the lien (which covers land as well as house) prior [**3]  to the lien. But the machine has a separate existence apart from and independent of any land, and in consequence the law gives a lien on it exclusively, and not, as in the case of a house, upon the house and the land which is essential to its support and being. Unless then there can be a mortgage of a machine before it is constructed, there can be no incumbrance on it prior to the mechanic's lien. 1 Hals. Ch. Rep., 485. The 4th section of the act of 1845, contains the whole case. Machines are the subject of the lien: it embraces every machine. The machinist is to have the lien in the same manner as builders and material-men have theirs upon buildings. It is the act of construction, erection and repair, which creates the lien, and this lien begins on the machine from the moment it is begun to be put up. It is impossible, therefore, that there can be any lien anterior to this. If the moment the machine is annexed to the freehold it becomes covered by the mortgage, then the very act which creates the lien works its destruction, and, so far as mortgaged property is concerned, the law giving the lien is a nullity. Suppose the case of movable machines, such as threshing machines, locomotives,  [**4]  &c.--when does the lien of the mechanic, as to them, begin, and how is it affected by their removal and use? If such a machine, after its sale, be seized under execution in the hands of the purchaser, would not the lien of the mechanic be preferred to that of the judgment creditor under his fi. fa.? Again, suppose this engine had been taken from the shop of the Denmeads, and carried to, and left upon, the mortgaged premises, without being put up in the factory, would the appellant have lost his lien by this act? But again, if annexation to the freehold merges the lien, is it not revived when disannexed? and does not the separate sale of the machinery in this case, with the reservation of all questions of priority, work such a severance as to revive the lien of the mechanic?

J. N. Steele and Jonathan Meredith for the appellee:

The concession, that the machine in question is a fixture, and that independently of any act of Assembly, the mortgage would attach thereto from its date, relieves the case of much argument. The claim of the machinist, then, is purely a statutory one, founded upon no equity, but rather upon a policy of doubtful expediency. The original lien law of 1838,  [**5]  ch. 205, anxious to protect existing liens, prefers the mechanic's lien only to such as attach subsequently to the commencement of the building. This law, therefore, concedes, that there may be prior liens, and provides for their protection, and what can such liens be but mortgages and judgments? Then came the act of 1845, ch. 176, which gives to the machinist a lien upon the machine "in like manner as buildings are made subject under the provisions of this and the original act, to which this is a supplement." The lien, therefore, of the machinist, is preferred only to such liens as attach subsequently to the commencement of the machine. In the language of this court, in the case of Wells & Miller, vs. The Canton Co., "the claim of a mechanic upon a machine must commence as soon as he begins to put up the machine," and is preferred only to such liens as subsequently attach thereto. But the moment the machine was begun to be put up on the property it became a fixture, a part of the realty, and the lien of the mortgage attached to it from the date of the mortgage, or at least it attached simultaneously with the lien of the mechanic. Upon no construction can it be said, that the lien [**6]  of the mortgage attached subsequently to that of the mechanic, and therefore the latter cannot be preferred to the former.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J., and in the course of the argument all grounds of claim on the part of the appellants were waived, except that of the original lien under the Mechanics lien laws.  

OPINIONBY:
LE GRAND 

OPINION:

 [*182]  LE GRAND, C. J., delivered the opinion of this court.
This appeal is from an order of the chancellor overruling exceptions to the report, and accompanying accounts distributing a fund which had been created by a sale of property on which there were various liens. It is only necessary to notice two of them, as they are all that are involved in the present inquiry.
It appears from the record, that, on the 4th of March 1841, the Powhattan Manufacturing Company being indebted to the Bank of Baltimore in a large sum of money, executed a mortgage of certain lands in Baltimore county, "together with all the buildings and improvements thereon," including "the mill, factory, dwelling and other houses; and all the machinery and fixtures, in said mill or factory," &c., as a security for said indebtedness. On [**7]  the 15th November 1845, the mortgage debt being unpaid, the company conveyed the premises to William Mason, who, in the year 1847, commenced the erection of a large mill on the property called the Pocahontas mill. In the year 1848, he caused suitable machinery to be constructed by different mechanics to be placed therein; and among others, by the appellants, who manufactured and furnished the mill with a steam engine, with boilers, tanks, and other usual appurtenances. About this time, Mason formed a co-partnership with William Mason, Jr., and H. A. Barling, who with him carried on the manufactory until 1849, when they were compelled to suspend their business. On the 8th of September of that year, they conveyed to Messrs. McKim and Kennedy, on certain trusts, the lands, the two factories, and all the machinery, fixtures, &c., belonging to them. On the application, by bill of complaint of these trustees, the property was sold, reserving for future adjudication all questions of priority.

 [*183]  It appears, from the testimony, that some time in 1848, the appellants sent the machinery, which they had made in the city of Baltimore, to the country to be put up in the factory; that [**8]  they filed their lien on the 18th of March 1848, on which scire facias issued in July 1849, and obtained judgment in September of the same year.
The question which we have now to determine is, which of these claimants is entitled to priority?
A great number of important question were suggested when the argument commenced, but all, save one, abandoned before it was concluded. It was conceded by the appellants. 1. That the machinery put up by them, so soon as it was attached to the building, became fixtures. 2. That it might be conceded that the judgment obtained by them was not in strict conformity with the acts of Assembly giving liens to mechanics and others, and therefore, that the judgment did not, of its own force, give a prior lien to the appellants. The counsel for the appellants desiring the case to be decided in view of these concessions, in regard to the propriety of which we wish to be understood as pronouncing no opinion, the case was submitted on the ground that, "even if the judgment is not held conclusive, the original lien itself is of sufficient force to bind the proceeds of the steam engine, &c., in favor of the appellants."
This being so, the whole case [**9]  is narrowed down to this: does the claim of the appellants, filed in March 1848, so far as the machine is concerned, give to the appellants a priority over the appellees who claim under a mortgage executed in 1841?
This is a question which must be determined by our acts of Assembly. It is not only not denied, but, it is conceded, that, independently of our legislation, the mortgage held by the appellees would attach from its date to any fixtures which might be affixed to the premises covered by it. But, it is insisted, the common law principle is modified by our acts of Assembly.
The first act relating to liens, that of 1838, chapter 205, does not embrace machines; but that of 1845, chapter 176, does. Its 4th section is in these words: "That every machine hereafter to be erected, constructed or repaired, within the 

 [*184]  city of Baltimore, shall be subject to a lien, in like manner as buildings are made subject under the provisions of this, and the original act to which this a supplement."
This section contemplates a lien on machinery arising in three different modes: 1st, where the machine is erected in a house or affixed to it or the soil; 2nd, where it is [**10]  constructed and is movable in its operations, such as a locomotive, a threshing machine, and the like; and 3rd, where the machine is repaired, whether it be attached to the freehold, or movable in its operation and use.
In the case now before us the lien arises under that part of the act which refers to the erection of the machine. In the case of Wells and Miller vs. The Canton Co., et. al., 3 Md. 234, this court said, in construing the 4th section of the act of 1845, chapter 176, that "the claim of the mechanic upon a machine must commence as soon as he begins to put up the machine." The evidence in this case shows, that the machine erected by the appellants was not begun to be put up until the year 1848, and under the decision to which we have adverted, the lien of the appellants did not commence until that time. The section under which a lien on a machine is given, provides, such machines "shall be subject to a lien in like manner as buildings are made subject under the provisions of this and the original act to which this is a supplement."
Now it is provided, that the lien acquired on a building for work done or materials furnished "shall [**11]  only be preferred to every other lien or incumbrance which attached upon such building, subsequent to the commencement of the same." Now were it even admitted that the common law principle, which would make the mortgage take effect from its date on all fixtures subsequently attached to the freehold, did not operate, it cannot, in our opinion, reasonably be denied, that it will operate from the very moment when anything is affixed to the land, and this being so, the machinist's claim cannot have a priority over the mortgage of an older date, because that priority is only over liens "subsequent," and not to those coeval or simultaneous. The lien of the mechanic is dependent wholly on the statute, and it defines the priority of such lien to be 

 [*185]  only over "subsequent" liens or incumbrances. Here the lien of the appellee is, in our judgment, clearly not subsequent to that of the appellants, and as a consequence must have a preference over the latter.
Order affirmed with costs. 

10 of 31 DOCUMENTS 

WILLIAM BOYD vs. DANIEL MCCANN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 118; 1856 Md. LEXIS 56 

DECEMBER, 1856, Decided 

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

Assumpsit brought by the appellee against the appellant and William Rogers, partners under the name of "Rogers & Boyd," upon a promissory note for $ 152.59, dated the 19th of January 1852, payable originally to blank order, four months after date, and signed with the firm name. Rogers failed to appear, and a judgment was rendered against him by default. Boyd appeared and plead non assumpsit.

Exception. The proof in the case is fully stated in the opinion of this court. The prayers asked by the plaintiff were:

1st. That if the jury shall find from all the evidence in the case, that the plaintiff received the note sued on from Wylie & Wilson, or from Ijams, their agent, and that Wylie & Wilson held the note bona fide and for valuable consideration, and without notice of any improper practice on the part of said Rogers, and without notice of a dissolution of said partnership, then the plaintiff is entitled to recover, though the jury may also find that the plaintiff had notice of the dissolution of the said partnership prior to his purchase of the note.

2nd. That if the jury find, from the evidence, that the [**2]  name of "Rogers & Boyd" remained over the door of the establishment of the late firm of "Rogers & Boyd," after the publication of the notice of dissolution of said partnership, then the plaintiff is, nevertheless, entitled to recover.

The prayers asked by the defendant were:

1st. That if the jury believe, from the testimony, that the plaintiff came into possession of the note in controversy after notice that the firm of "Rogers & Boyd" had been dissolved, was published in the newspapers in Baltimore, he is not entitled to recover.

2nd. That the plaintiff having declared, on the note as being made in his favor by Rogers & Boyd, any testimony on his part to show that the note was not made in his favor, but in favor of another party, from whom he purchased it, is inadmissible.

3rd. That if the jury believe, from the testimony in the case, that the plaintiff purchased the note under such circumstances as were calculated to raise a suspicion in his mind of its validity, and were calculated to put him on inquiry, then he is not entitled to recover as against Boyd.

The court (MARSHALL, J.,) granted the first prayer of the plaintiff, and rejected all the others on [**3]  both sides. The record shows that several exceptions to each of the adverse rulings of the court were noted by each party in the course of the trial, and but one signature and seal of the judge at the conclusion, which is as follows:

"And the counsel for the plaintiff and defendant prayed the court to sign and seal their several bills of exceptions, as set forth in the foregoing bill, as they appear on either side respectively; which is hereby signed and sealed this 22nd day of February 1853."

The verdict and judgment were in favor of the plaintiff, and the defendant, Boyd, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A notice of the dissolution of a partnership, published in a newspaper, though not, per se, sufficient to show either that the dissolution took place on a certain day prior to the publication, or that parties dealing with the firm, and others, had notice of the dissolution on that day, is yet admissible in evidence as a circumstance tending to show these facts.

A prayer that if the jury find that the plaintiff "received the note" from a bona fide holder, "without notice of the dissolution of said partnership," &c., is defective in assuming the making of the note, and the existence of the partnership.

It is no defence or bar to the title of the holder of a negotiable promissory note, that he was aware of some infirmity in the paper, provided he received it, at or before maturity, from a prior bona fide holder, for value; the right of the party so acquiring it, is the right of him from whom it was obtained.

The mere certificate of the editors of a newspaper, that notice of the dissolution of a partnership had been published in it, without any proof that the party sought to be affected with such notice, took or read the paper, is not sufficient to affect such party with notice.

The fact that a promissory note is payable to blank order, authorises the holder to fill it up, at any time, with his own name as payee.

The fact that the firm name was kept over the door of the place of business after dissolution of the partnership, is not, of itself, sufficient to authorise the holder of a note signed in the firm name to recover upon it.  

COUNSEL:
E. R. Sprague for the appellant, argued:

1st. That the court below properly overruled the plaintiff's objection to the certificate of the editors of the "American" newspaper, and the notice of dissolution of the partnership appended thereto. The objection is to the admissibility of this evidence, upon the ground "that the right to recover upon the note was not affected by this notice, the plaintiff having received the note from a bona fide holder, without notice, for value." It was certainly competent for us to prove that Wylie & Wilson, the [**4]  parties from whom the plaintiff purchased the note, had knowledge of the fact of the dissolution of the partnership when they received the note, and the evidence objected to was clearly one step in the order of such proof, a circumstance tending to show that fact, and was therefore admissible. 7 Md. Rep., 582, Pegg vs. Warford.

2nd. That the court erred in admitting the testimony of Wilson, and that offered by the defendant, to show that the note was given for a fraudulent purpose, or for the private benefit of Rogers, and also in its rulings upon the several prayers: 1st, because the notice of the dissolution of the copartnership, published in the newspaper on the 23rd of January 1852, was a sufficient notice to bind the plaintiff; 2nd, because the plaintiff having purchased the note after he had notice that the co-partnership of Rogers & Boyd had been dissolved before the note was made, is not entitled to recover thereon as against Boyd; and 3rd, because the plaintiff's first prayer, which was granted by the court, is defective in form. It assumes the due execution of the note, and the existence of the partnership of Rogers & Boyd at the date of the note, which were facts to [**5]  be found by the jury. 2 Gill, 426, Charleston Ins. Co. vs. Corner. 2 Md. Rep., 75, Brown vs. Ellicott. 11 G. & J., 479, Ragan vs. Gaither.

James Malcolm for the appellee, argued, that the court below was right in granting the first prayer of the plaintiff, and in rejecting those of the defendant, and erred in rejecting the second prayer of the plaintiff, and also in admitting the evidence of notice of dissolution:

1st. Because if the plaintiff received the note from Wylie & Wilson, and they were bona fide holders, without notice, for a valuable consideration, he held the note under their title, and if they were entitled to recover, so would the plaintiff be, even if he had notice of the object of Rogers in giving the note of the firm for his private purposes, of which there is no proof. Story on Prom. Notes, secs. 72, 191. Byles on Bills, 37. 6 Md. Rep., 9, Manning, Stimpson & Co., vs. Hays.

2nd. Because the note being attacked by the testimony on the part of the defendant, the plaintiff had a right to protect himself under the title of a bona fide holder without notice, and, therefore, the testimony of Wilson was admissible; and, besides, there is no testimony to show [**6]  that the plaintiff had any notice of the dissolution, and because there was no evidence tending to show suspicious circumstances surrounding the note, or to put the party upon inquiry, the note being dated prior to the notice of dissolution having been published. Story on Prom. Notes, secs. 191 to 197. 3 G. & J., 369, Penn & Flack, vs. Cooley.

3rd. Because there was no legal evidence shown in the record of any notice ever having been published of the dissolution of the partnership. Story on Part., secs. 160 to 162. Byles on Bills, 38.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*121]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought by the appellee against the appellant and William Rogers, partners under the name of Rogers & Boyd, to recover the amount of a promissory note for $ 152.59, dated the 19th day of January 1852, payable four months after the date thereof. The plaintiff proved the signature to be in the hand-writing of Rogers, one of the partners, and that William Rogers and William Boyd were partners, and that the names of both were, at the date of the note, and still are, over the door [**7]  of the place of business of the late firm, on Baltimore street. He further proved, that the note was sold to the 

 [*122]  plaintiff by W. H. Ijams, a note broker, and that the note was in blank (as to the payee's name) at the time of the sale, and that he sold it as the agent of Wylie & Wilson, a house doing business in the city of Baltimore. It was sold to the appellee on the 11th day of February 1852, for some "seventy odd dollars," and his name inserted as payee.
The defendant offered to prove, by an advertisement, dated the 1st day of January 1852, but which was not published until the 23rd day of the same month, that the firm had been dissolved upon the first day of it. To this the plaintiff objected, but the court overruled the objection, and in doing so, we think, acted correctly. Although, as will be seen hereafter, the advertisement, per se, was not sufficient to show either that the dissolution took place on the first day of the month, or that either Wylie & Wilson, or McCann, had knowledge of the fact, yet it was a circumstance tending in that direction, and which, if it had been followed up with other evidence, might have been sufficient to bring notice home [**8]  to the plaintiff.
The plaintiff then offered to prove, by Wilson, one of the firm of Wylie & Wilson, that he had received the note sued on from Rogers, of the firm of Rogers & Boyd, upon the day of its date, in renewal of one which was due from Rogers & Boyd, and that he had no knowledge of the dissolution of the co-partnership, nor of anything affecting the note, or that it was to be applied to Rogers' private purposes. The defendant then offered to prove that it was given for the private purposes of Rogers, but without bringing the knowledge home to either the plaintiff or to Wylie & Wilson, from whom he obtained it. The plaintiff objected to the proposed testimony, and the court sustained the objection. The propriety of this ruling will be seen where the law governing case is applied to the respective prayers offered by the plaintiff and defendant.
The plaintiff asked two instructions from the court, the first of which was granted, and the other rejected. The first prayer was defective in form, and, therefore, improperly granted. By assuming their existence, it took away from the jury the finding of the making of the note, and the existence of the partnership. Although [**9]  the proof was all one way, nevertheless 

 [*123]  it was for the jury to pass upon it. In the case of the Charleston Insurance & Trust Co. vs. Corner, 2 Gill 410, 427, the court say: "Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right to weigh the credibility of evidence." On the same point see Brown vs. Ellicott, 2 Md. 75. Ragan vs. Gaither, 11 Gill & John. 472. Independently of the objection to which we have referred, the prayer stated the law correctly.
If the Messrs. Wylie & Wilson took a good title to the note, then it was competent to them to dispose of it to one who might be aware of some infirmity in the paper. The right of the party so acquiring it, is the right of those from whom it was obtained. If this were not so, the note would have been valueless in the hands of Wylie & Wilson, bona fide [**10]  holders without notice. Story, in section 191 of his work on Promissory Notes, thus states the rule: "The partial or total failure of consideration, or even fraud between the antecedent parties, will be no defence or bar to the title of a bona fide holder of the note, for a valuable consideration, at or before it becomes due, without notice of any infirmity therein. The same rule will apply, although the present holder has such notice, if he yet derives a title to the note from a prior bona fide holder for value. The doctrine, in both its parts, is indispensable to the security and circulation of negotiable instruments; and it is founded on the most comprehensive and liberal principles of public policy. No third person could otherwise safely purchase any negotiable instrument, for his title might be completely overturned by some latent defect of this sort, of which he could not have any adequate means of knowledge," &c., &c.
The doctrine was carried much farther, by the late Court of Appeals, in a case very fully discussed by counsel, and considered by the court, but which has not been reported.
In the case of the Merchants Bank of Baltimore, vs. The 

 [*124]    [**11]  President, Directors & Company of the Farmers Bank of Virginia, the facts were as follows: S. drew a check on the bank in Virginia, which was endorsed "good" by O., the teller of said bank, S. having no funds there to meet it. This was in June; in December following, S. passed it as security to the Merchants Bank for a loan. At this time the Merchants Bank had not any notice of any defect in the check, or its endorsement. In January S. failed; the check endorsed good, which he had deposited with the Merchants Bank, was for a larger sum than that which he had borrowed, but being indebted to Mr. Cochrane, of Washington, and urged by the latter to pay him, he proposed that if Cochrane would settle with the Merchants Bank the amount due to it by S., he would give an order for the check in favor of Cochrane, which was accordingly done. On the 25th of January, Sherrod, the cashier of the Virginia Bank, informed Sprigg, the cashier of the Merchants Bank, that Orrick had fraudulently endorsed the check "good," and that S. had no funds to meet it at the time it was so endorsed. The arrangement by which the debt of S. to the Merchants Bank was settled, was not consummated until the 28th day [**12]  of January; it, therefore, is apparent that the Merchants Bank had full notice of the fraudulent character of the transaction when it passed the check to Cochrane; the latter, however, had not when he acquired it. The Merchants Bank subsequently obtained possession of the check, and, on the strength of the title of Cochrane, notwithstanding its own knowledge, was held entitled to recover.
It is shown that Rogers & Boyd had had dealings with the Messrs. Wylie & Wilson prior to the date of the note sued on. There is no evidence they ever had any with McCann. The publication, in the newspapers, of the dissolution of the copartnership, was not until after the title of Wylie & Wilson was perfected. There was no notice, as shown by the testimony of Wilson, given to his firm of the dissolution, nor is there any evidence McCann had any. The latter is sought to be charged with notice because of the publication in the "Baltimore American" newspaper. This cannot be done, it not having been shown, except by the certificate of the publishers 

 [*125]  of that paper, that the notice of dissolution had appeared in it, nor that McCann took or read the paper. See Byles on Bills, edition of 1856,  [**13]  marginal pages, 35, 36 and 37, and the authorities there collected.
These views dispose of the prayers offered on the part of the defendant. They show that the title of Wylie & Wilson being good, McCann had the right to repose upon it. The fact that the note was in blank, authorized the plaintiff, at any time, to fill it up with his own name as payee. We think the court properly rejected the plaintiff's second prayer. It rests on the single fact, that if the jury should find the names of Rogers & Boyd were kept over the door after the dissolution of the copartnership, then the plaintiff was entitled to recover. This circumstance, apart from all others, manifestly was not sufficient to authorize the recovery of the plaintiff.
Judgment reversed and procedendo awarded. 

11 of 31 DOCUMENTS 

EDWARD DOWLING vs. JOHN SPEAR SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 242; 1856 Md. LEXIS 21 

JUNE, 1856, Decided 

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

The act of 1853, ch. 409, required the clerks of the Court of Common Pleas, the Superior Court, and the Register of Wills, of Baltimore city, within thirty days after its passage, to file with the comptroller bonds in certain prescribed penalties, conditioned for the faithful performance of their duties, with sureties, the sufficiency of which was to be certified by the judges of the respective courts, the bonds to be approved by the comptroller, and, when so approved, to be filed in his office.

This act having omitted to designate the period of the duration of these bonds, and to provide for their renewal, the supplemental and amendatory act of 1856, ch. 286, was passed, the provisions of which, necessary here to be stated, are as follows:

The 1st section enacts, that each of the above named officers, who may not have given his official bond within two years past, "shall, within thirty days after the passage of this act, file with the comptroller a bond," as prescribed by the act of 1853.

The 4th section provides, that when the bond is inspected by the judge, and is deemed good and sufficient, and is so certified,  [**2]  it shall be forthwith entered among the proceedings of the court, and sent to the comptroller for his approval, who, when it is approved, shall send to the judge a certificate of the fact, which shall be entered among the proceedings of the court in which the bond shall have been recorded.

The 5th section, which is similar in this respect to the 4th section of the act of 1853, declares: "That a refusal, or neglect on the part of," any of these officers, "to comply with the requirements of this act within thirty days after its passage, shall be deemed a disqualification within the meaning of the constitution, and thereupon their places shall be filled according to the provisions of the fourteenth and eighteenth sections of the fourth article of the constitution, and subject to the term and service therein prescribed." (These sections of the constitution give the judge the power to appoint a clerk, in case of a vacancy, until the next general election.)

The 6th section provides, that the act shall take effect "from the date of its passage." It was passed by the House of Delegates on the 7th, by the Senate on the 8th, and engrossed on the 10th of March 1856.

Dowling, the [**3]  appellant, the clerk of the Superior Court of Baltimore city, presented his bond to the judge of that court, on the night of the 7th of April 1856, for his certificate as to the sufficiency of the sureties. The judge gave a certificate that he had "examined the said sureties, who made oath, in due form of law, that they are able and sufficient," &c. The bond was delivered to the clerk on the morning of the 8th, and on the same day was sent by mail to the comptroller at Annapolis, and was received at his office on the morning of the 9th of April. That officer declined to approve the bond, because it was not filed with him within thirty days from the passage of the act of 1856. He also objected that the certificate of the judge did not state that the sureties to the bond are sufficient. This latter difficulty was obviated by an amendment to the certificate, but the comptroller still withheld his approval, upon the ground that the bond had not been filed in time.

The court, (LEE, J.,) then laid a rule upon Dowling, to show cause why he should not be declared disqualified, within the meaning of the constitution, to hold his office, and why his place should not be filled according [**4]  to the constitution and the act of 1856. Dowling, in his answer to this rule, denies that he has been convicted, or has been guilty of any wilful neglect of duty or of any misdemeanor in office as clerk, and insists that he has not become liable, within the true meaning of the constitution, to removal from his office, the franchise of which he claims, under the sanction of the constitution, as a protected and vested interest, indefeasible save where, by the rule and ordinance of that constitution, he shall be judicially established to have forfeited it, and denies the authority of the court to challenge or control his constitutional claim and franchise, and its right to lay the rule or arraign him for any supposed disqualification for tenure of his office. The court, immediately upon filing of this answer, passed an order declaring the office vacant.

Shortly afterwards the court passed another order, appointing the appellee, Smith, clerk to fill the vacancy, who, having duly bonded, applied to the court for an order upon Dowling to compel delivery of possession of the office. Upon this application the court passed an order requiring delivery as claimed, unless cause be shown to [**5]  the contrary.

In his answer to this order Dowling insists upon his former grounds of defence, denies the constitutionality of the 5th section of the act of 1856, and, even conceding that it was constitutional, denies that the action of the court under it was warranted by it. He also charges, that as soon as he had knowledge of the existence of the act, he did all in his power to comply with its requirements, and insists that he did file his bond within time, as that act is to be construed as having passed on the 10th of March, and not on the 8th of March 1856.

The court then passed an absolute order, requiring Dowling to deliver possession of the office to Smith. From this order, as well as from the previous order declaring the office vacant, Dowling appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

The constitution provides, that the clerk of the Superior Court of Baltimore city shall be subject "to be removed for wilful neglect of duty or other misdemeanor in office, on conviction in a court of law." The 5th section of the act of 1856, ch. 286, enacts, that a "refusal or neglect" on the part of this clerk to give the bond prescribed by that act, "within thirty days after its passage, shall be deemed a disqualification within the meaning of the constitution," and directs his place to be filled by the judge of the court, as provided in case of a vacancy by the provisions of the constitution. HELD:

That this section of the act in question is unconstitutional, because it provides for the removal of the clerk in a manner directly in conflict with the one prescribed by the constitution. Before the clerk could be removed for such failure to give bond, he must be convicted therefor in a court of law of "wilful neglect of duty in office." Per LE GRAND, C. J., and ECCLESTON, J. Contra, per TUCK and MASON, J.

The 16th sec. of the 4th art. of the constitution makes all existing laws relating to the former clerks, applicable to the new clerks to be elected under the constitution, and gives the Legislature power from time to time to amend and alter them, and under this provision the Legislature had the power to pass the act of 1856, ch. 286, with the exception of its 5th section.

Where an act of Assembly requires something to be done within a certain time from its passage, the time is to be reckoned from the date of the engrossment of the law, and not from the date of its passage by the two houses of the Legislature; a law is not perfected until it has been engrossed. Per MASON, J.  

COUNSEL:
Charles J. M. Gwinn for the appellant.

The two orders passed by the Superior Court raise the single inquiry, material to this case; that is, whether that court had the right to declare the office of its clerk vacant, as, by the record, appears to have been done?

The appellant was duly elected clerk of the Superior Court of Baltimore on the first Wednesday of November 1851, under art.  [**6]  4, secs. 14, 24, of the constitution of Maryland, for a term of six years. Having "duly qualified" according to law, under art. 4, sec. 16, he entered on the discharge of his duties. Now there are two inquiries to be made here:--1st. What was the form of qualification necessary? 2nd, (and this is the gist of the case now pending,) What was the legal effect of his fulfilment of the qualifications, declared to be necessary to his perfect tenure of his office.

Upon his election he was bound to take the oath prescribed by the 9th sec. of the 1st art. of the constitution,--of fidelity to the constitution and laws, that he had not been guilty of bribery, and would not receive the profits of any other office during his term. When this oath was taken he was qualified to hold the office. The giving of the bond was not a qualification for office, and there is nothing in the constitution to make it so. The words, "qualified according to law," in art. 4, sec. 16, can, of course, refer, in Dowling's case, only to such measures as the law then required of a clerk, before he could enter upon his office. As the law then stood, the clerk of the Superior Court bonded under the act of 1800, ch.  [**7]  82, which was amendatory of the acts of 1716, ch. 1, and 1742, ch. 10. The first and last of these acts assumed that the clerk was qualified to act even if he did not bond, as they required. They made bonding necessary, however, to the officer, by declaring, (1716, ch. 1, sec. 3, 1800, ch. 82, sec. 3,) that he should not have the right to collect his fees unless he did bond as they required. If the act of 1742, ch. 10, bears a contrary interpretation, it is superseded by that of 1800, ch. 82. The officer was duly qualified to act as clerk under these laws,--he was civilly responsible for malconduct in office, and criminally responsible for offences committed by him as an officer--but he could enjoy no emolument from the office unless he bonded. The law of 1823, ch. 195, did not alter this state of things. It only provided an additional safeguard, by declaring that the clerk should bond in every second year, and by directing his punishment by fine if he did not. The omission to give the bond was no disqualification; for it would have been folly to provide that he should be punished for not giving the bond as clerk, if he ceased to be clerk when he did not give the bond. The law of 1840,  [**8]  ch. 52, only prescribed the time at which the bond should be renewed.

When the new constitution was adopted, the words, "when duly elected and qualified according to law," meant only, qualified according to the requirements of the constitution as the supreme law of the State, for there was not then in force any statute which made a compliance with its terms necessary to a qualification to office.

Having become thus legally qualified, it was not competent for the Legislature to add to the tenure of his office any qualification except that which the constitution provided for. The Legislature might make the forfeiture of the office a part of the punishment which it imposed for any malfeasance or nonfeasance, but it could only do this by prescribing it as a punishment to be inflicted after a conviction. 3 Cow., 686, People vs. Barker, and the same case in 20 Johns., 457. The act of 1853, ch. 409, was a departure from this well settled rule of law, unless it is construed in subordination to it and to the constitution. It provided that new bonds should be given by the clerk of the Superior Court, and by the other officers therein named, within thirty days after its passage, and [**9]  declaring that his refusal or neglect to do so "should be deemed a disqualification within the meaning of the constitution; and thereupon their places shall be filled according to the provisions of the 14th and 18th sections of the 4th art. of the constitution." This law did not provide for a renewal of the bond, and the Legislature assumed that the law of 1823, ch. 195, was repealed by the act of 1853, ch. 409, by the preamble of the law of 1856, ch. 286, which is the immediate subject of this controversy. This law of 1856, ch. 286, is, in its 5th section, a repetition of the words of the act of 1853, ch. 409, sec. 4, under which the clerk of the Superior court had bonded. The re-enactment of the portion of the former law prescribing its penalty does not help the construction of the law. It is now for the first time, when the Superior Court has undertaken to act under it, material to construe its correctness.

Concede now that the clerk of the Superior Court did not bond within thirty days, as required by the law of 1856, ch. 286. What is the effect of that failure to comply with the requirements of the law of 1856? The law says, it "shall be deemed a disqualification within the [**10]  meaning of the constitution, and thereupon his place shall be filled according to the provisions of the 14th and 18th sections of the 4th art. of the constitution." Now what are disqualifications within the meaning of the constitution, and how are they ascertained to exist? For disqualification here must be construed to mean, acts that work a forfeiture of the office, its tenure having commenced. The word occurs several times in the new constitution. In sec. 29, art. 3, in case of "Disqualification" of a member of the Legislature a new election shall be ordered. The only cause of disqualification would seem to be his election to the Congress of the United States, which vacates his former seat. It is stated in its meaning, though not in terms, in art. 3, sec. 36, where a person who shall fight a duel, or who shall send a challenge or accept one, shall be incapable of holding any office of profit or trust. It need not be argued here, however, that the forfeiture of an office held by a person who had done any of these acts could only follow a conviction and be a part of, or a consequence of, the sentence. The word occurs in art. 4, sec. 20, in the provision for sheriffs, and again in [**11]  art. 4, secs. 25, 26, but no interpretation is given to its meaning.

From these clauses, therefore, we can derive no light. We may, indeed, assume that the word was not used with any definite idea of its legal application to the circumstances of which it proposed to treat. The word drifted into sec. 29, art. 3, and sec. 20, art. 4, from the old constitution, where it had a meaning, and where it meant a property qualification.

We are obliged to construe the words, "shall be deemed a disqualification within the meaning of the constitution," in such manner as shall make them harmonise with the process, by which, in the new constitution, it is provided that the clerk of the Superior Court shall become disqualified for office; that is, by regarding his neglect or refusal to give the bond required by the act of 1856 as a wilful neglect of duty, or as a misdemeanor in office, for which, upon conviction therefor in a court of law, he may, by the judgment of such court having jurisdiction, be removed from office. A legal vacancy then occurs, and the office may then be filled under the provisions of the 14th sec. of the 4th art. of the constitution. For, to sum up the argument, the [**12]  law of 1856 does not say that the clerk refusing or neglecting to bond shall be thereby disqualified. If it did, we might argue the constitutional power of the Legislature to create a defeasance of a vested office by superadding a qualification, superior to, and not required by, the constitution. It does not say that by his neglect or refusal he shall be deemed to have resigned his office, which is the more common method, but one equally liable to objection and comment. But the act says that the clerk shall be deemed to be "disqualified within the meaning of the constitution," and the public authorities are, therefore, left by the law to ascertain, in the mode in which the constitution has pointed out, the fact of his neglect or refusal; and it is the duty of the court before which this question is tried, if the wilful neglect or refusal to bond is ascertained, to declare such disqualification in the only legal mode--that is by its formal judgment and act of record.

An argument will be drawn on behalf of the appellee from the language used by the Court of Appeals, in the case of Thomas vs. Owens, 4 Md. Rep., 224. In reply to the sentence referred to it need only be said that,  [**13]  without discussing whether the law there announced is applicable to the case of the Comptroller or Treasurer, or not, it certainly cannot, either upon reason or precedent, be considered as binding upon the court in the decision of this case. In general, even, it must be said that the doctrine of this isolated passage, if insisted upon, and engrafted upon our law, would be fraught with great evils. If the non-compliance by a constitutional officer with all legislative requirements not inconsistent with the tenure of his office, is to be deemed a resignation, he is at the mercy of every legislative body that may choose to set traps for him in the discharge of his official duty. The least omission to perform some statutory act, may be tried in the closet of an executive, and an office may be declared vacant as effectually by his ex parte decision, as it could be by the judgment of a court for some well ascertained and undoubted misdemeanor.

If the Legislature can enable a court to disqualify an officer who does not file his bond in a given time, without enabling him to show, by process of a jury trial, that he was prevented by the act of God even, can it not enable a governor to [**14]  pronounce a judge's disqualification, who shall not literally adhere to every minute process in the administration of justice which it may see fit to enjoin? If in office he had committed the grossest corruption, he could claim, under the bill of rights, to be informed of the accusation against him, and to have the benefit of a trial by jury, before the sentence of deprivation of his office could be made against him. But if such a construction holds, as is insisted on here, for the simplest non-feasance, he may be tried he knows not when, and he knows not where, without counsel, before one to whom he is not, by the common law, or the constitution, amenable, and he may be as effectually injured in the loss of credit, name and office, as if he had stood at the bar as a criminal, and had been so adjudged.

The argument to be derived from the common law, and from the practice in the English courts, in cases of forfeiture, are conclusive upon the point, that even where there is no doubt that a forfeiture has occurred, it cannot be taken advantage of except by the intervention of a jury. In case of self-murder even, however apparent the fact may be, no part of the personal estate is [**15]  vested in the king before the self-murder is found by an inquisition. 13 Viner's Abr., title, Forfeiture, 451. 1 Hawk. P. C., 68, ch. 27, sec. 9. Things even causing death, which may come properly within the description of deodands, are not so without the finding of a jury. 1 Chitty's Blacks., 302. 3 Inst., 57. So in treason under statutes 5th and 6th Edw. 6, ch. 11, sec. 9, and 26th Hen. 8, ch. 13, sec. 4, all lands, tenements and hereditaments were forfeited, yet an inquisition of office was necessary to vest them in the king, and this security continued until 33 Hen. 8, ch. 20, sec. 3, which expressly dispensed with the necessity of an office or inquisition. And in case of felony goods are not in the king without an office found of such felony, because the property cannot alter without matter of record. 5 Coke, 109, Foxley's case. 4 Bac. Abr., 342, title, Forfeiture, letter B. So the king, even where his tenant in capite has alienated, is not in possession till the alienation is found by office. 16 Viner's Abr., 80. Where a man is attainted the king cannot enter without office. 16 Viner's Abr., 80. So it is generally said that where an officer, who holds his office by patent, commits [**16]  a forfeiture, he cannot, regularly, be turned out without a scire facias, nor can he be said to be completely ousted or discharged without a writ of discharge; for his right appearing of record the same must be defeated by matter of as high a nature. 7 Bac. Abr., 323, letter M. 2 Chitty's Blacks., 199. 8 Coke, 14, The Prince's case. 9 Coke, 98, Sir Geo. Reynel's case. Dyer, 198, Rex vs. Eston. Dyer, 211, (a,) Sir Robert Cheston's case. 2 Term Rep., 554, King vs. Amery. Siderfin, 81, Sidney Beere vs. Windebanke. Where in appeal the defendant waged battel, and was vanquished, but not by death, by which judgment was given that he be hanged, for without judgment the lord cannot have the escheat. 10 Viner's Abr., 140, 141. Coke Litt., 390, (b.) So in this country, where a statute imposes a forfeiture by way of a penalty, the law does not vest them in the party to whom the goods and chattels are given, without a judicial proceeding declaring the forfeiture. 10 Wend., 266, Fire Department vs. Vip.

Finally, it would seem that this bond was rendered in time, both from the certified copy of the law, and from the printed volume which states the law to have been passed on the 10th of March [**17]  1856.

J. Meredith for the appellee,--after calling the attention of the court to the 4th point on the appellant's brief, that the act of 1856, though passed by the House of Delegates on the 7th, and by the Senate on the 8th, of March, did not become an operative law till the 10th of the same month, when it was engrossed,--stated, that as the point had been left entirely untouched by the opening counsel, he presumed that it was abandoned, and though prepared to argue it, would, on that presumption, pass it by without remark. Mayer for the appellant, observed, that the point had not been abandoned. Meredith then stated, that in that case he had a right to require an opening, and would give way to the counsel, or his colleague, for that purpose. This offer being declined, he then observed, that should the point be raised in the concluding argument, the counsel of the appellee would claim the right to reply.

He then proceeded to say, that the case involved a question of legislative power. The constitutionality of an act of the General Assembly is the main subject for discussion; and the court need not to be reminded, that of all subjects of judicial cognizance, it demands the [**18]  gravest and most considerate attention. If he had entertained a doubt of the validity of the act of 1856, it would have been removed by the decision of the court, in Thomas vs. Owens, 4 Md. Rep., 189, on the authority of which he should ground the argument he proposed to offer.

That, the court would recollect, was a controversy between the Comptroller and Treasurer of the State, as to the time when the salary of the former legally commenced. The 1st sec. of the 6th. art. of the constitution, creates a Treasury Department, consisting of those two officers, and amongst other provisions, requires them to "take such oath, and enter into such bond, for the faithful discharge of their duties, as the Legislature shall prescribe."

The only qualification required by the constitution, for the office of Comptroller, is that contained in the 4th sec. of art. 1, which directs that the oath, the formula of which is given, shall be taken by every person, elected or appointed to any office of profit or trust, before he shall enter on its duties; and on neglect or refusal to take such oath, he shall be considered as having refused to accept the office, and a new election or appointment shall [**19]  be made, as in case of refusal or resignation.

The appellant, Thomas, was elected Comptroller on the 5th of November 1851, and qualified by taking the oath on the 10th of December, from which time he claimed salary.

At the session of 1852, an act was passed by the General Assembly, in execution of the powers granted by the section of the constitution before referred to, which prescribed the oath, and the penalty and condition of the bond to be given by the Comptroller and Treasurer; and provided that in case of neglect or refusal to give bond, within twenty days after a demand by the Governor, "such neglect or refusal shall be deemed a disqualification within the meaning of the constitution;" and forthwith a fit and proper person shall be appointed to fill the vacancy. Thomas took the oath and gave the bond on the 28th of February 1852, and it was contended on the part of the Treasurer, that his salary commenced on that day.

The court decided, that he became duly qualified for office, by taking the oath prescribed by the constitution, and was therefore entitled to salary from that period; that all which was required of him was to qualify according to existing laws, and [**20]  having done so, he was to be considered as rightfully in office; that the authority given to the Legislature to prescribe an oath, and require a bond, not demanded by the constitution, was meant to guard against consequences which would have resulted from the operation of a well known and universally acknowledged principle of law:--that when a constitution defines the qualification of an officer, it is not within the power of the Legislature to change or superadd to it, unless the power be given expressly, or by necessary implication. The constitution does contain an express grant of such a power, and therefore the act of 1852 was rightfully passed, and the Comptroller was bound to obey its requirements, as he would be bound to obey any future law upon the same subject; for the exercise of the power is not confined to its first exertion by the Legislature, but extends to all time; and that if the Legislature should hereafter alter the oath or bond which the act of 1852 prescribes, a failure to comply with such new law would be held a resignation of office.

These are the principles of law, thus sanctioned by the authority of the court, which we hold to be decisive of this case.  [**21]  We admit, that the legislative department of the government is the depository of those powers only that are conferred upon it by the constitution, either expressly, or by necessary implication. And we admit still further, that no power can be implied which the constitution directly prohibits, or which is repugnant to any of its provisions.

The act of 1856, the constitutionality of which is denied, requires new bonds to be given by the clerks of the Common Pleas, and of the Superior Court, and by the Register of Wills, of Baltimore city, within thirty days after the passage of the law; and repeating the language of the act of 1852, requiring bonds from the Comptroller and Treasurer, declares that a refusal or neglect shall "be deemed a disqualification within the meaning of the constitution," and that thereupon the office of the uncomplying clerk shall be filled according to the 14th and 18th sections of the 4th art. of the constitution.

As in the case of the Comptroller and Treasurer, there is no other qualification for the office of clerk than that prescribed by the 4th sec. of art. 1, namely, the oath of office. But this omission is explained by the 16th sec. of art. 4,  [**22]  which declares that the clerks of the several courts throughout the State, "when duly elected and qualified according to law, shall have the charge and custody of the records, and other papers belonging to their respective offices." By what law? By the law in force for the time being. This is palpable from another provision of the same section, which declares, that all laws then in force relating to clerks, shall "be applicable to the clerks respectively of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city." Whatever qualifications then were required by these laws, or any of them, the clerks first elected under the new constitution were bound to conform to, in order to be "qualified according to law."

Now what laws requiring bond, with security, to be given by the clerks of courts, were then in force?

In 1742 the Provincial Legislature passed an act, (ch. 10,) providing, that every county clerk should give bond, with sufficient securities; that it should not be lawful for the clerks then in office, or to be thereafter appointed, to take upon themselves the keeping of the records, or to receive [**23]  any of the fees of office, till they had entered into bond with the prescribed conditions; and that these bonds should be given by the clerks then in office, within a time limited by the act, and should be renewed as often as the county courts respectively might see cause, in reference to the solvability of the sureties.

The act of 1856, now, in question, is substantially this act of 1742, which was in force when the first constitution was adopted, and remained in force and unchanged till 1800. (State vs. Wayman, 2 Gill & Johns., 285.)

In 1800 an act was passed, (ch. 82,) increasing the penalty, and altering the condition of the bond prescribed by the act of 1742, but containing no repeal of that law. Like that act, it applied to clerks in office, as well as those to be subsequently appointed, and was also limited to take effect on a day named. It provided, that it should be unlawful for clerks to receive fees of office until they had entered into bond; and left the 4th sec. of the act of 1742 untouched, which, as has been seen, authorised the judge, in his discretion, to demand a new bond.

To this discretionary power, another safeguard was added by the act of 1823,  [**24]  ch. 195, which required a renewal every second year, under a penalty of $ 1000. But this last act contained no repeal of the act of 1742, or that of 1800, and both of these being affirmative statutes, it might well be questioned, if the point were at all material, whether the money penalty should not be construed as cumulative upon the disqualification provided for by both the former acts.

Thus then stood the law when the present constitution went into operation, requiring bond with securities, renewable every second year. No clerk therefore could be, in the language of the constitution, "qualified according to law" until he gave such bond. The appellant was elected clerk of the Superior Court at the first election in 1851, and having given bond, was "qualified according to law."

At the session of 1853, an act was passed requiring new bonds to be given, within thirty days after its passage, by the clerks and register of the courts in the city of Baltimore, under penalty of disqualification. This law the appellant also conformed to. But the act of 1853 containing no provision for the renewal of the bonds which it required, the amendatory act of 1856 was passed to supply that [**25]  omission, by requiring new bonds to be filed, and to be renewed every two years, under the same penalty. The appellant failed to comply with this law, within the time limited for filing a new bond; and the judge of the Superior Court, being notified of that fact by the Comptroller, proceeded, under the express requirements of the act, to declare the office vacant, and to appoint a successor.

Assuming the constitutionality of the act, it is clear, that after a failure to comply with its terms, Dowling was no longer "qualified according to law," but disqualified, not only within the meaning of the constitution, but by the very words of the 16th sec. of the 4th art., which gives the charge and custody of the records and other papers of the office, only to a clerk "duly qualified according to law." The disqualification is not by force of the act of 1856, but is declared by the constitution.

It is plainly undeniable, if the act of 1856 does not transcend the limits of the legislative power, that by this failure to comply with its terms, the appellant was no longer "qualified according to law," but disqualified, not only within the meaning, but by the express words of the 16th [**26]  sec. of the 4th art. of the constitution. He had no longer a legal right to "the charge and custody of the records and other papers belonging to the office." "Suppose," said Judge Eccleston, in the case of Thomas vs. Owens, "suppose that subsequent to the act of the Legislature, the Comptroller had refused to comply with its provisions, insisting that he was already in office, and would perform its duties, and demand his salary, upon the ground that he had taken the oath directed in the 1st article, could it be successfully maintained that he had a right to do so? I think not. If not, then why? It could only be for the reason that he was not qualified. And yet in the supposed case every requisite to constitute him Comptroller would exist, except a compliance with the legislative act."

Now to what extent, and within what limits, does the constitution confer legislative power? The third article of the Declaration of Rights--which is a part of the organic law, as supreme and obligatory as the constitution itself,--(1 Gill & Johns., 472,)--expressly subjects all laws in force "to the revision of, and amendment or repeal by, the Legislature." And the 16th sec. of the 4th art. of the [**27]  constitution, recognises this power over the laws relating to clerks throughout the State then in force, by declaring that they "shall be applicable to the clerks respectively of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court, and the Criminal Court of Baltimore city, until otherwise provided by law."

"Whenever a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution? If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution? If it be, then it may be exercised by Congress. If not, Congress cannot exercise it." (3 Story's Comm., 114.) Now taking the 16th sec. of the 4th art., with the article in the Declaration of Rights, it amounts to this, that the Legislature shall have power to revise, amend, or repeal all laws relating to clerks. The power then is expressed:--it is a general power, and necessarily a continuing power. It does not however execute itself, but is to be executed only by legislation." "What is a power," says the same learned [**28]  jurist, "but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but the power of making laws? What are the means to execute a legislative power but laws? In a word, the powers given by the constitution imply the ordinary means of execution; for without the substance of the power, the constitution would be a dead letter." (3 Comm., 109.) In order, however, to avoid all doubt or disputation as to the admissibility of implied powers, as well as to guard against their abuse, the 2nd sec. of the 10th art of the constitution declares, that "the Legislature shall have power to pass all such laws as may be necessary and proper for carrying into execution the powers vested by the constitution in any department or office of the government, and the duties imposed upon them thereby." This is almost a literal transcript of the last clause of the 8th sec., art. 1, of the constitution of the United States, and whatever doubt may have existed as to its true interpretation, was removed by the judgment of the Supreme Court, in McCulloh vs. The State of Maryland, 4 Wheaton, 316. It was [**29]  insisted in that case, that the language of the clause was to be rigorously construed; that the word "necessary" was to be taken as equivalent to absolute and indispensable necessity; that it was to be considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted power, to such as without which the power itself would be nugatory. The court, however, rejected this narrow construction, and, by a masterly argument, demonstrated the necessity of giving it a liberal interpretation. They decided that the word as used in the clause meant nothing more than needful, appropriate, suitable, fitted to the object or end proposed; that the court when inquiring, as it had a right to do, whether Congress had made a selection of constitutional means to execute the granted power, would compare the law with the constitution, not in order to ascertain whether better means might have been chosen, but to see whether those which have been chosen have a natural connection with the power granted; whether they are adapted to give it effect; whether they are appropriate means to the end. For the choice of the means,--the degree of the necessity, is for [**30]  the Legislature alone to decide. The court cannot inquire into these without passing the line that circumscribes the judicial department, and treading on legislative ground.

There being then an express grant of power in the present case, to revise, amend or repeal all laws relating to clerks, the only question to be considered is, whether the act of 1856 was a necessary and proper law to carry that power into execution? Among these laws, none appear to have been regarded as more important than those requiring security for the due and faithful discharge of the duties of an office of such great public trust. From the earliest period of Maryland legislation, as we have seen, laws intended to effect this object have been enacted, and from time to time revised and amended, at the discretion of the Legislature. The power was never questioned under either of the preceding constitutions, though neither of them contained any express grant of authority; it was conceded to be inherent. The act of 1853 effected no change in the character and nature of the qualification required by previous laws. It did not substitute another thing in the place of the bond: it did simply what the act of 1800 [**31]  had done, increase the penalty and alter the conditions. The act of 1856 simply re-enacted that of 1823, requiring a renewal every two years. The object of both acts was to protect public and private interests. The clerks of the courts established for the city of Baltimore, were invested with much higher and more important trusts than their predecessors under the former constitution. They were receivers of large portions of the revenues of the State; and the great increase of responsibility, in this and other respects, made a change of penalties a wise and salutary precaution. The preamble to the act of 1856 manifests the wisdom and expediency of these laws.

Now the means to secure obedience to these laws was indispensable to their efficiency. Following the precedent of the act of 1852, relating to the office of Comptroller and Treasurer, and copying the very words of its 7th section, both these laws inflict the penalty of disqualification for neglect or refusal to comply with their provisions, as did the act of 1742. Can the right to do so be questioned? The right to punish infractions of law is incidental to the power of legislation; it is a means for carrying that power into [**32]  excution, and is conducive to its beneficial exercise. The penalty of disqualification resulted from the power granted, was adapted to give it effect, was an appropriate means to the end: was "necessary and proper," in the language of the 2nd sec. of the 10th art., according to what we have seen to be the true and settled interpretation of those words. If this be so, then all judicial inquiry, whether better means might have been chosen, is forbidden. "The choice of the means," say the Supreme Court,--"the degree of the necessity is for the Legislature alone to decide. The court cannot inquire into these without passing the line that circumscribes the judicial department, and treading on legislative ground."

But, nevertheless, the means must be constitutional,--neither expressly prohibited by it, or repugnant to any of its provisions; that we freely concede. It is not pretended that there is any express prohibition against the infliction of the penalty of disqualification to be found in the constitution. On the contrary, the 16th sec. of the 4th art. presupposes it, as does the 20th sec. of the same article, in the case of sheriffs. But a repugnancy is supposed to exist between [**33]  this penalty and the 14th sec., which provides, that clerks shall be subject to removal "for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law." And the argument is, not merely that this is the only mode by which a clerk can be removed from office, but by which he can forfeit his office. Removal and forfeiture are very distinct things. What is a misdemeanor in office? It is clear that the convention used the word in its technical sense. It declares "wilful neglect of duty" to be a misdemeanor; and so it is, indictable and punishable at common law. 1 Stark. Crim. Pl., 149. The words, "or other misdemeanor in office," necessarily mean misdemeanor ejusdem generis,--indictable at common law, such as all unlawful acts done colore officii,--extortion, corruption, falsification of records, and other offences of a similar character. The convention did not intend to create new misdemeanors, unknown to the common law, but merely to make forfeiture of office cumulative upon fine and imprisonment. Can it be seriously contended, that neglect or refusal to give an official bond, in order to be qualified to hold office, is a misdemeanor in office? Where is the [**34]  precedent for such an indictment to be found? There is no repugnancy. The constitution itself prescribes the remedy. Clerks not "qualified according to existing laws," shall not have the charge and custody of the records and other papers belonging to the office; in other words, shall be disqualified from holding office. Can a clerk be said to be "qualified according to law," who refuses or neglects to give a bond demanded by law as a qualification for office? If after election he refuses or neglects to give the bond required by the existing law, he cannot enter into office, because he is not qualified according to law. In like manner, if after qualifying according to existing laws, he enters into office, and a law is subsequently passed, in the rightful exercise of the legislative power, requiring a new bond, which he refuses or neglects to give, this court has already decided, in Thomas vs. Owens, that he is forbidden by the constitution to continue in office, and precisely for the same reason, because he is no longer "qualified according to law."

In truth, the acts of 1853 and 1856 were, in regard to disqualification, entirely supererogatory; they simply gave the true and unmistakable [**35]  construction of the 16th sec. of the 4th art.; they were declaratory, and nothing more. Strike the penalty out of both of them, and the same consequence would follow. The disqualification is the penalty imposed by the constitution itself.

Reverdy Johnson on the same side.

The appellant must make good one of two propositions: 1st. That the 5th section of the act of 1856, ch. 286, is unconstitutional, or 2nd. That the mode adopted by the judge of the Superior Court in vacating the office and appointing a successor to Dowling was not warranted by the act.

1st. Had the legislature the power to pass this law? The argument on the other side goes to the extent, not only of denying that the constitution contains any provision requiring such a bond, but also that it has put it out of the power of the Legislature to pass a law requiring such bonds to be given. In construing the constitution one rule of construction is applicable, viz., that all fit subjects of legislation are within the legislative department, unless vested elsewhere or expressly prohibited to the legislature. The rule of construction of State constitutions is entirely different from that of the constitution of [**36]  the United States. In the latter you look to see if the particular power is among the enumerated powers granted to Congress; in the former you look to see if it is legislative in its character, and whether it is prohibited to the Legislature. There is no doubt that the law in question, in the absence of any prohibition to the Legislature to pass it, is a power which can only be exercised by the Legislature. The form and character of the bonds which shall be given by the clerks who are revenue officers of the State, is a subject exclusively appropriate to statutory provision. The object to be attained is security to the public revenue against the danger of negligence in the revenue officer, and there is just as much necessity to require the renewal of the bond as to require a bond in the first instance. Is there then any provision in the constitution which prohibits the Legislature from passing this law? In my judgment clearly not. The convention knew that the clerks of the old county courts were required to give bonds. Did they mean to put the clerks to be elected under the constitution in a different predicament? If they did they intended these clerks should not give bonds at all.  [**37]  The 4th section of art. 1, prescribes the oath to be taken by all officers before entering upon the discharge of the duties of their offices. If this alone gives the officer a right to his office, independent of any subsequent legislation, then all the subsequent laws in regard to bonds are at an end. Not only so, but if this oath is all that is necessary to entitle the appellant to his office, then no bond could be required, even under antecedent laws. But you must take this constitution as a whole and construe all its provisions together. The 16th sec. of art. 4, makes the clerks therein referred to, subject to existing laws, "until otherwise provided by law." This provision keeps in force all the previous laws relating to clerks, until amended or repealed by subsequent legislation. The 3rd art. of the Declaration of Rights, also, continues in force all laws existing at the date of the constitution, except such as are repugnant thereto. These provisions, taken together, show, that the officer taking the oath must also conform to existing laws, and perform such duties as the legislature may from time to time prescribe. 7 Md. Rep., 477, Marshall vs. Harwood. The act of 1853, ch. 409,  [**38]  containing the same provision as the act under consideration, is one of contemporaneous construction. I submit, therefore, that the Legislature had a clear right to pass this law.

2nd. Was the mode adopted in this case, to vacate the office, warranted by the act and the constitution? The 14th sec. of art. 4, makes the clerk subject to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law. It also provides, that in case of a vacancy the judge shall have the power to appoint until the next general election of delegates. The law, in question, provides, that a failure to comply with its provisions shall be deemed a disqualification within the meaning of the constitution, and gives the judge the power to fill the vacancy until the next general election. Now it is said on the other side, that there must be, under the constitution, a conviction in a court of law before a removal from office can take place. But by the law in question, the bond is to be approved by the judge and comptroller, and then entered of record in the Superior Court. If the clerk does not comply with these provisions within thirty days from the passage of the law,  [**39]  he is not, under the law, any longer the clerk. Even, in the absence of the 5th section, if the time had passed and he had failed to give the bond, he would be no longer clerk, because these are conditions precedent to his holding the office; it is a failure to qualify and he is just as much out of office as if he had failed to comply with any antecedent law. If the legislature had the power to require the execution of the bond they could declare the consequences of a failure to execute it. Is he to remain in office until the grand jury indict him, or the petit jury convict him, and the Court of Appeals determine the law? The question is, were the Legislature bound to leave the officer in office until these questions should be determined? Refusal to qualify himself for an office is not a crime for which a party can be indicted. How can it be said that the refusal to give a bond is a crime for which a man can be indicted? But again, to sustain an indictment under this clause of the constitution, the party must be in office. But if he fails to give bond he is not in office and could not be guilty of any offence in office. This clause of the constitution applies only to the case of a [**40]  party in office, officially doing an act which is a wilful neglect of duty, or a misdemeanor, and has no application to the case of a party failing to qualify. How could you indict Dowling under this provision of the constitution? If he fails to give the bond he is out of office, and can be guilty of no misdemeanor as clerk; for on the moment the thirty days had expired he was not in office as clerk. If, upon his election, Dowling had not given bond at all, and had gone into office, he could not, according to the argument on the other side, be removed, except upon conviction in a court of law. He would thus be in office and have control of the public revenue without any bond at all. Such cannot be the construction of the constitution. There are other modes of vacating an office than by wilful neglect or misdemeanor in office. Suppose Dowling had left the State, or suppose he was dead, would not the judge have the power to fill the vacancy? In the case of Thomas vs. Owens, 4 Md. Rep., 224, this court has said, in reference to the offices of comptroller and treasurer, that they are to "qualify according to existing laws, liable, however, to any demand the Legislature might thereafter [**41]  make on them; and on their failure to comply therewith, to be deemed as having resigned their offices." I refer also to the case of Parker vs. Overman, in the Supreme Court of the United States, at its December term 1855, as a full warrant for the action of the court below in this case, and submit that both the orders appealed from should be affirmed.

Chas. F. Mayer for the appellant, in reply, argued:

1st. That the act of 1856, ch. 286, is unconstitutional in assuming to define or superadd a disqualification within the meaning of the constitution, if there be such term, actually or constructively, as disqualification, as to clerks, in the constitution, or if it be convertible with cause of forfeiture of office. The legislature is not authorised to interpret the constitution. It is unconstitutional, too, in not only adding, if it be construed to mean any imputation of delinquency, a cause of forfeiture of office, but in making, too, an act of omission, per se, a transgression. The constitution declares, that the clerk, on conviction in a "court of law," of "wilful neglect of duty," or "other misdemeanor," shall be "subject to removal," and, but for that particular exposure [**42]  to forfeiture for such a cause, shall hold his office for six years. There is no other cause of forfeiture that the constitution contemplates, or that can constitutionally be attached to the office of clerk. The removal, there, is part of the sentence of the court before whom the conviction occurs, and is to be pronounced only by that court. People vs. Barker, 3 Cowen, 686, and 20 Johns., 457.

2nd. Not only must the declaration of forfeiture be a judicial act, but the act entailing the forfeiture must be formally and distinctively established as any penal charge, and judicially, and in the course of criminal procedure, with privilege of jury trial. An office, whether emanating from the people's suffrage by election, or conferred by direct commission from the State, as by patent of the English Crown, must be avoided by procedure of as high a nature as the patent matter of record. Here, without proof of any kind, and with a denial of wilful neglect, the judge summarily excludes even the privilege of testimony, and pronounces for the guilt of the appellant on what he, ex mero motu, receives as an authentic letter from the comptroller, who repudiates the bond, in part, for a defect [**43]  which is the fault of the judge himself. 5 Coke, 109, Foxley's Case. 4 Bac. Abr., 342, tit. "Forfeiture," Letter B. 7 Do., 322, title "Officer & Office." 10 Viner's Abr., 140, 141. 16 Do., 80, 81, 83. 13 Do., 451. 1 Hawk. P. C., 68, ch. 27, sec. 9. 1 Chitty's Pl., 302, Statutes 5th & 6th, Ed. 6th, ch. 11, sec. 9. 26 Henry 8th, ch. 13, sec. 4. 33 Henry 8th, ch. 20, sec. 3. 2 Chitty's Bl., 199. 8 Coke, 14, Prince's Case. Dyer, 198, Rex vs. Eston. Ibid., 211, (a,) Sir Robert Chester's Case. Sid., 81, Beere vs. Windebanke. 2 Term Rep., 554, 557, King vs. Amery. 10 Wend., 266, Fire Department vs. Vip.

3rd. The constitution makes all laws applicable to the new clerks of the courts that attached to the clerks of the county courts until other laws, in pari materia, be passed. It is only under that provision that the legislature could exact new bonds under any terms; but those prior laws did not make the failure to give bond a cause of forfeiture of office, nor, per se, a penal offence. And it might well be doubted whether any such consequences could, by new legislation, be affixed to omissions to give bonds, even if a conviction in a court of law were required, and it was necessary to [**44]  convict the party for the case of the omission of "wilful neglect of duty." Const., Art. 4, secs. 14, 16, 24. Art. 1, sec. 4. Acts of 1800, ch. 62, sec. 3. 1716, ch. 1, sec. 3. 1742, ch. 10, secs. 2, 4. 1823, ch. 195. 1840, ch. 52. 1853, ch. 409. 1856, ch. 286.

4th. It is not to be conceded, that the act of 1856 was passed the 8th of March, but it must be understood as passed when both branches of the Assembly recognised it, on the 10th of March, as a law. The printed volume of laws so dates the passage of the law. If that be so, the bond was presented in time, and the supplemental certificate operating, ab initio, the bond, as admitted by the comptroller, was adequate, and was, even on the 9th of March, good and in time. If even the suppletory amendment from the judge had not relation back to make full the certificate, the appellant could not suffer, as the omission was the act of the State herself by her own officer.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*266]  The Judges delivered separate opinions in the case.
LE GRAND, C. J.:
Looking to the proper interest manifested by a large portion of the community in [**45]  the questions supposed to be involved in this case, and differing, as I do, in some particulars, from the opinion pronounced by my brother MASON, (which is concurred in, to a considerable extent, by my brother TUCK,) I deem it advisable to briefly indicate the views which I entertain in regard to the matter embraced by these appeals.
The case is before us on two appeals. First, on an appeal from an order passed by the judge of the Superior Court for Baltimore city, declaring the office of the clerk, of said court, vacant. And Secondly, from an order directing the appellant, Dowling, to surrender to the appellee, Smith, all the books, records, &c., belonging to the office of the clerk of said court.
The appellant, Dowling, in November 1851, was elected to the office of clerk of the Superior Court, and shortly thereafter gave the necessary bond, and took the oath prescribed by the constitution.
There is no question that he was properly inducted into office: that is to say, in strict conformity with the requirements of the constitution and the then existing laws. Nor is there any question as to his compliance with the act of 1853, chap. 409. If he be out of office, he is [**46]  so, only, because of an alleged noncompliance with the act of 1856, chap. 286.
The office of clerk to the Superior Court for Baltimore city, is created by the 14th section of the 4th article of the constitution of the State. After reference to other matters, it declares: "There shall also be a clerk of the Court of Common Pleas, in Baltimore city, and a clerk of the Superior Court of Baltimore city, and there shall also be a clerk of the Criminal Court of Baltimore city; and each of the said clerks shall be elected, as aforesaid, by the qualified voters of the city of Baltimore; and shall hold his office for six years from the time of his election, and until a new election is held, and be re-eligible thereto: subject, in like manner, to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law."

 [*267]  The 16th section, of the same article of the constitution, provides, that "All laws relating to the clerks of the Court of Appeals, clerks of the several County courts and Baltimore city court, shall be applicable to the clerks, respectively, of the Court of Appeals, the County courts, the Court of Common Pleas, the Superior [**47]  Court, and the Criminal Court of Baltimore city, until otherwise provided by law."
By the 14th section of the 4th article, it is provided, that "In case of a vacancy in the office of a clerk, the judge or judges of the court of which he was clerk, shall have the power to appoint a clerk, until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy."
It is under these clauses of the constitution, and the provisions of the act of Assembly of 1856, chap. 286, the authority is claimed for the judge of the Superior Court, to vacate the office of the clerk to his court.
It is manifest, from these citations, that all laws relating to clerks of the several courts, which were in force at the adoption of the constitution, continued so, and, as applicable to the clerk of the Superior Court, "until otherwise provided by law." Until the act of 1853, chap. 409, there was no attempt, since the adoption of the present constitution, to alter or modify, in any particular, (so far as bonds of clerks are concerned,) the laws existing previously thereto. Dowling entered into his office in the year 1851, and bonded. His bond was, consequently,  [**48]  given under the act of 1800, chapter 82. Its condition covered the whole period "during his continuance in office;" that is to say, for the period of six years, should he continue in office such a length of time.
The act of 1853, chapter 409, did not, in any wise, change the condition of the bond, which it required the clerk of the Superior Court to enter into. Its whole office was to change the amount of the penalty, and to fix the time within which, after the passage of the act, the bond required should be given, The obligation of the bond given under this act, extends over the whole period of his continuance in office, or at least, until such time as he shall give a bond, as required by the act of 

 [*268]  1856, chapter 286. If, therefore, the bond executed in 1853 be a good bond, the public are not without security against any neglect, or failure to discharge his official duty, by the clerk. This is my opinion.
I entertain no doubt that it was competent to the legislature to pass, (with the exception of the 5th section,) the act of 1856, chapter 286. The 16th section of the 4th article of the constitution, expressly authorises the legislature to alter the laws relating [**49]  to the clerks: but it does not authorise an alteration of the constitution itself. Did such a power exist in the legislative branch of the government there would be, in fact, no constitution. Its provisions would depend wholly upon the wisdom or caprice of the members at each recurring Assembly. To admit of such a power in the Legislature would be to ignore all our consecrated ideas of the protection furnished to our rights of person, liberty and property, by Magna Charta and our Bill of Rights, both of which provide and guarantee, that we shall not be dispossessed of anything, except by the judgment of our peers.
Whilst I hold, with the exception of its 5th section, the act of 1856, to be a legitimate exercise of legislative power, I am still clearly of opinion, that that section is an infraction of the organic law, and in this, that it seeks to provide for the removal of a clerk, in a manner directly in conflict with the one prescribed by the constitution.
If the legislature exact of a clerk the renewal of his bond, and he refuse to comply, such refusal is a neglect of duty, inasmuch as he is bound to conform to all laws relating to him as clerk, and to his office [**50]  as such; and he may be convicted for the same, in a court of law, and amoved. It is proper, however, to observe, that the mere failure to give bond, within the time prescribed, is not, ex necessitate, such a "wilful" neglect of duty as would, under every possible state of circumstances, command a conviction. It is not every neglect of duty which will, under the constitution, justify a conviction; it must be a "wilful" neglect. The importance of this word, in this connection, is made manifest by contrasting the section of the constitution, in which it is found, with the language of 

 [*269]  the 3rd section of the 4th article. In the latter it is said: "The Court of Appeals shall appoint its own clerk, who shall hold his office for six years, and may be re-appointed at the end thereof; he shall be subject to removal by the said court, for incompetency, neglect of duty, misdemeanor in office, and for such other causes as may be prescribed by law."
By this part of the constitution, it will be seen, the clerk of the Court of Appeals may be removed by the court for any neglect, wilful or not; and that the power is reserved to the Legislature to prescribe [**51]  other causes of removal than those specified in the constitution. This is not so in regard to the clerks of the Circuit Courts, nor of the clerk of the Superior Court, nor of the clerk of the Court of Common Pleas, nor of the clerk of the Criminal Court. So far as they are concerned, the judge of the particular court has no power to remove; they must be convicted "in a court of law;" and if the conviction be for a neglect of duty, such neglect must be "wilful," and of the wilfulness in the particular instance, the jury must be the judges.
The distinction in the constitution, between the power of the judges of the Court of Appeals over their clerk, and that of the judges of the other courts over their clerks, is obvious and broad, and we cannot but hold, that to the convention which framed the instrument it was apparent, and was by it intended to be so.
The fact is, the constitution, in regard to nearly all the officers recognized by it, points out the manner, mode and causes of removal; and it is a well settled principle of construction, that where a right or franchise is conferred, subject to be divested in a manner specified, the manner so designated must be pursued. It [**52]  is to such cases the maxim, expressio unius est exclusio alterius, properly applies. And so, accordingly, it has been frequently held, both by courts of law and legislative bodies, that where certain qualifications are specified, as those constituting the right of a party to hold and enjoy an office, and no power by the constitution be reserved to the legislature to add to or take away therefrom, the enumerated requisites are all that can be insisted upon. I agree with my brother 

 [*270]  Eccleston in what he has said in regard to the action of the Superior Court. The matter was coram non judice, and, therefore, of non-effect.
The result of the opinion pronounced by the judges of this court is, that the orders of the Superior Court, in the premises, be reversed.
Order reversed. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J.:
Although the clerk of the Superior Court of Baltimore city may have failed to procure the approval of his official bond, according to the provisions of the act of 1856, ch. 286, within the time prescribed by that act, still I do not think, that for such failure, the judge of the court had the right to declare the office vacant, and to pass the orders which [**53]  he did, for the purpose of filling the vacancy. The language of the act must be construed with reference to the provisions of the constitution on the subject; and, in my opinion, notwithstanding the failure to procure the approval of the bond in due time, the judge had no authority to treat the office as vacant whilst Dowling continued to claim it, until, for such failure, he was convicted in a court of law of "wilful neglect of duty" in office, according to the 14th section of the 4th article of the constitution.
Believing the action of the court below was erroneous, I think there should be a reversal, and therefore need not inquire whether the proceedings, in point of form, were irregular or not.  

DISSENTBY:
MASON; TUCK 

DISSENT:

MASON, J.:
The main question for our determination upon the present appeal is, whether the act of 1856, chap. 286, is a constitutional exercise of power upon the part of the legislature? That act provides, that the clerk of the Superior Court of Baltimore city shall execute a bond with securities, &c., within thirty days from the passage of the law, and in the event of his not doing so, the 5th section provides, that it "shall be deemed a disqualification within [**54]  the meaning of the constitution, and thereupon his place shall be filled according to the provisions 

 [*271]  of the 14th and 18th sections of the 4th art. of the constitution." It is supposed that these requirements are inconsistent with the terms of the constitution which relate to the clerks of the several courts in this, that the act superadds a qualification, and provides a mode of removal from office not contemplated by the letter or spirit of the constitution; and this question is to depend upon the proper construction of that instrument.
The true meaning and spirit of the constitution can only be collected from an interpretation of its several parts relating to the same subject, taken in connection with each other. And in determining the constitutionality of statutes, comity requires, that acts of a co-ordinate branch of our government are never to be declared, by this court, to be unconstitutional and void, except upon the clearest conviction that they are repugnant to the organic law.
The terms of the constitution, which are to control this question, are to be found in the 14th and 16th sections of the 4th article. By the 14th section it is provided, that "there shall [**55]  be a clerk of the Superior Court of Baltimore city elected as aforesaid, by the qualified voters of the city of Baltimore, and shall hold his office for six years from the time of his election, &c., subject in like manner to be removed for wilful neglect of duty, or other misdemeanor in office, on conviction in a court of law."
If this provision stood alone it might be a very grave question, whether the legislature could require any additional qualification for the clerk, such as giving a bond, inasmuch as no such qualification is enumerated in this section; but we are relieved from any difficulty upon this point, so far as the requirement of a bond is concerned, by the 16th section. That section provides, that "all laws relating to the clerks of the Court of Appeals, clerks of the several county courts, and Baltimore City Court shall be applicable to the clerks, respectively, of the Court of Appeals, the Circuit Courts, the Court of Common Pleas, the Superior Court and the Criminal Court of Baltimore city, until otherwise provided by law; and the said clerks, when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging [**56]  to their respective offices."

 [*272]  If there was doubt as to the previous section there is none as to this. It intended to make applicable to the clerks elected under the new constitution, so far as they might relate thereto, all the laws then in existence, relating to the former clerks; and further to empower the legislature, from time to time, to amend or repeal those laws at will. In other words, upon every subject upon which statutes were in force relating to clerks, it was the design of the constitution to empower the legislature to legislate upon the same subjects. But it was not the purpose of the constitution to authorise the legislature, under the shadow of this power, to impose new duties and qualifications not contemplated by the constitution or the then existing acts of Assembly. Among the laws relating to the former clerks, at the time of the adoption of the present constitution, were those requiring official bonds. We do not deem it necessary to go into an examination as to the precise state of the law upon this subject. It is sufficient for us to know, that the laws required bonds to be executed by the clerks, and therefore the power was vested in the legislature [**57]  to regulate the subject, if it should be deemed necessary, by subsequent acts. We think it clear, therefore, that it was within the power of the legislature to pass the act of 1856, chap. 286, so far as it requires the execution of a new bond by the clerk, and for its renewal every two years. It was simply otherwise provided by law as to the nature of the clerk's bond.
This leads us to the consideration of other and more difficult questions, namely, whether, in case of the neglect of the clerk to give the bond as required by the act, the effect of such omission would amount, ipso facto, to a vacation of the office; or if not, whether the legislature has power to provide for the removal of the clerk and for the appointment of his successor in case he fails to give the bond as required.
We are of the opinion, that unless the omission to give the bond, of itself, vacated the office, the legislature had no power to confer upon the Superior Court the right to turn the clerk out upon any pretext or proceeding whatever, for the reason that the said 14th sec. expressly provides, that he shall be removed 

 [*273]  on conviction in a court of law; and as there could be, under [**58]  the constitution, no proceeding in the Superior Court in the nature of a criminal prosecution, against the clerk, there could be no conviction in that court, and, therefore, no removal. The point then is, has the clerk, by omitting to give the bond, in the spirit of the constitution and laws, actually vacated his office, in the same manner as if he had resigned, removed from the State, or the like; or has he only done, or omitted to do, an act which amounts to such a wilful neglect of duty, that, upon conviction of which, he forfeits his office? If the first, "it was a case of vacancy in the office," and the Superior Court was right in filling the place, as is required by the aforesaid 14th section; but if it was the second, the court was wrong in attempting to fill the office before it had been made vacant by a conviction in a court of law.
We cannot shut our eyes to the fact, that it was the design of the constitution, and the laws existing at the time of its adoption, that this clerk should give bond, and that such bond should constitute an essential qualification for the office. It would hardly be contended, that Mr. Dowling could have entered rightfully upon the duties [**59]  of his office upon the mere force of his election alone, without giving a bond under the constitution and laws as they then stood. The language of the constitution, that the clerks, "when duly elected and qualified according to law, shall have the charge and custody of the records and other papers belonging to their respective offices," is equivalent to saying that they shall not act or be considered as in office until they shall have qualified; and one of the modes of qualification is giving bond. What official act could a clerk perform without having "the charge and custody of the records and other papers" of the office? Yet he cannot have these without first giving a bond.
In the exercise of the power conferred by the constitution, to otherwise provide by law, for the regulation of the bonds of the clerks, the Legislature passed the acts of 1853, chap. 409, and 1856, chap. 286. The first of these acts required a new bond to be given within thirty days after its passage, in the penalty of $ 30,000, and contemplated the continuance of the 

 [*274]  bond during the term of office. This act, in its letter and spirit, was complied with. The act of 1856, differed substantially [**60]  from the previous act, only in requiring the renewal of the bond every two years. It is not necessary, in this connection, to decide how far the bond, under the act of 1853, continues in force, notwithstanding the failure to bond under the act of 1856. It is probable it would continue in force, inasmuch as it was intended to cover the whole term of the clerk. But it is clear, that any bond executed under the act of 1856, to run for two years, could not bind the obligors on that bond for official acts done by the clerk, after the expiration of the two years, because the extent of the obligation, under the law, was for the faithful discharge of the duties of the clerk for two years only, and that obligation, by construction, cannot be enlarged.  Robey vs. Turner, 8 G. & J., 125. At the end, therefore, of the two years, if the clerk should fail to renew his bond, we would have either the office, with its records and papers, in the possession of a clerk acting without the obligations of a bond, or the office would be vacant. We have already said the constitution and laws contemplate a bond for the public security, and that the clerk could not get possession of the office [**61]  until he gave such bond. Is it not virtually a contradiction, in terms, and a violation, at least, of the spirit of our system, to say, that while he cannot get into the office without first giving a bond, yet, after he does get in, the clerk may hold it without any? But it is said, he may be convicted in a court of law, and removed, for not giving the bond, regarding the omission to do so, as a "wilful neglect of duty, or other misdemeanor in office." During the slow process of this prosecution he is to continue in office, perpetrating, if he pleases, all manner of wrong against the public, without any bond to protect them against the consequences of such official misconduct. But, in addition to the removal from office, as a penalty for wilful neglect of duty, or other misdemeanor, the law contemplates that the public, as well as individuals, shall find indemnity and redress against the clerk for such official misconduct in his bond; and it was never, therefore, the design of the constitution and laws, that there should ever be a 

 [*275]  clerk without a bond. The object of the bond, as has been remarked, was to afford security and indemnity against the wilful neglect  [**62]   of duty, or other misdemeanor in office, on the part of the clerks, and if it was contemplated, that there could be no clerk without a bond; neither, as a consequence, could there be any wilful neglect, or other misdemeanor in office, without a bond to cover it. But if not giving the bond be a wilful neglect of duty, or misdemeanor in office, then there is a neglect of duty or misdemeanor not covered and provided for by the bond; and that, too, such a neglect of duty as almost to embrace within its scope and consequences every other neglect of which the clerk might be guilty; for if the clerk is himself irresponsible, and has given no bond, there is no pecuniary indemnity against his official misconduct.
The 14th section of the constitution, already cited, provides, that "in case of a vacancy in the office of a clerk," the judge may appoint the successor. The constitution is silent as to what is to constitute such vacancy, or how it may occur. It would certainly hardly be contended that this term would only embrace a vacancy resulting from a conviction. If it did, death, resignation or removal from the State, could not be regarded as such vacancy. We do not doubt for one moment [**63]  that the term vacancy was employed in the constitution in its usual signification, and that it embraced every event or act, such as death, resignation and the like, and every other conduct from which, in legal contemplation, or actual intendment, the party is understood as having vacated the office, as well as a vacancy resulting from a conviction in a court of law.
The omission of the clerk to give the bond was equivalent to a resignation, removal from the State, or the acceptance of another inconsistent office. He was guilty of an act of omission, as inconsistent with the tenure of the office, as if he had accepted the office of collector of the port of Baltimore, or bona fide removed to California, either of which would have, beyond question, amounted to a vacancy within the meaning of the constitution.
In the case of Van Orsdall vs. Hazard, 3 Hill Rep. 243, the court announce some general principles quite applicable to 

 [*276]  the case now before us. It is there said that "a vacancy may sometimes arise from a mere implied resignation, as by accepting an office incompatible with that which is claimed to be vacant."
The clerk in this instance took his office [**64]  burthened with the obligation to discharge its duties and accept its emoluments, only under the restraints and penalties of a bond, and upon the condition imposed by the constitution, that the Legislature should have power from time to time to regulate the nature, amount and duration of the bond. If he fails to comply with the requirements of the Legislature in this particular, he is no longer clerk. He vacates the office by his own act. He puts himself out. The alternative presented to the clerk is, give bond and remain in office, or omit to do so, and go out. The proposition is a plain one, about which there can be very little room to dispute in regard to facts. It is not a neglect of duty, or a misdemeanor within the meaning of the constitution. These may depend upon a number of contingencies, and therefore a proper subject of investigation before a jury in a court of law.
The constitution of the State of Arkansas provides, that "the qualified voters of each county shall elect one sheriff, &c., for the term of two years. They shall be commissioned by the Governor, reside in their respective counties during their continuance in office, and be disqualified for the office a second [**65]  time, if it should appear that they or either of them are in default," &c. Art. 6, sec. 17, Con. Ark. Dig., 64.
By a statute of the State, Dig., 871, "the sheriff of each county shall be ex officio assessor for the county." The same statute requires, that to qualify the sheriff to act as assessor, he shall, "on or before the 10th day of January in each year, make and file in the office of the clerk an affidavit, in the following form, &c., and if any sheriff shall neglect to file such affidavit within the time prescribed, his office shall be deemed vacant, and it shall be the duty of the clerk, without delay, to notify the Governor of such vacancy."
In the case of Parker & others, vs. Overman, 18 Howard 137, the Supreme Court were called upon to interpret these 

 [*277]  several provisions in the laws of Arkansas. The question was one of title to land, and depended upon the regularity of a tax sale. The objection to the sale was that the land was not legally assessed. Upon the point we cite from the opinion of the Supreme Court:
"The record shows, that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor [**66]  on or before the tenth of January, as required by law. He did file an oath on the fifteenth of March, but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law, his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale. The neglect also to file his assessment and give immediate notice on the 25th of March, so that the purchaser might have his appeal at the next county court, was an irregularity which would have avoided the sale, even if the assessment had been legally made."
It will be seen that the office was, by the statute, (which was sustained by the court,) declared to be vacant upon the omission to make the affidavit. In the case before us the statute declares the office vacant upon the failure to give the bond, and as our constitution contemplates by its express provisions, that a bond shall constitute an essential element in the qualification of a clerk, and as the constitution of Arkansas is silent upon the subject of the sheriffs making any affidavit, the case decided by the [**67]  Supreme Court is even stronger than the one we are now considering. In both cases the act of omission to comply with the law, is not regarded or treated as a ground for removal from office, but as constructive evidence of an actual abandonment of the office by the incumbent.
There is nothing in the judicial decisions of our own State repugnant to the views expressed in this opinion, but, on the contrary, they rather tend to sustain them. 6 Har. & John. 96.  7 G. & J., 253. 8 Ibid. 125. 9 Ibid. 15.
The suppositive case, that the Legislature might impose upon the several clerks duties or obligations in giving bonds or otherwise, which it might be impossible or wrong for them to 

 [*278]  comply with, is not this case. We are not to strain our vision to find improper or corrupt motives in the Legislature for the passage of any law. It is our duty to enforce acts of Assembly whenever we can. But where we find acts or duties imposed upon public officers or individuals by the Legislature, which it would be impossible for them to perform, or wrong to respect, a different state of case would be presented than the one now before us, and when such does [**68]  arise we shall be prepared to act. In the law before us, we can discover nothing that is unjust or unreasonable. Indeed it is almost a copy of the act of 1853, which was complied with, promptly and without complaint, or difficulty.
The case before us presents a question of jurisdiction. If the question was, whether the clerk in not giving the bond was guilty of a neglect of duty, as defined by the said 14th sec. of the constitution, and a forfeiture of his office was the penalty, then the Superior Court has no jurisdiction over the subject. But if the omission to give bond vacates the office, then the jurisdiction belongs to the Superior Court, and the issue of fact to be determined is simply, has the clerk failed to give the bond? That issue, when determined by the court below upon the facts, is subject to be reviewed by this court upon appeal, and the question now is has the issue been established? And the same rule would apply if the question was whether the clerk had resigned, or bona fide removed from the State.
It appears from the record that the act of 1856 passed the House of Delegates on the 7th day of March, and the Senate on the 8th, and that it was engrossed on the [**69]  10th. Mr. Dowling's bond appears, from the statement of the judge, to have been approved on the 8th of April, and, by the statement of the comptroller, that it was presented to him for approval on the next day, namely, the 9th of April. In this aspect of the case the question is, was the bond executed and filed with the comptroller within the time prescribed by the act of 1856? and this presents the further question, at what precise point of time does an act take effect? If the law went into operation as soon as passed by the Senate, the bond was not in time, but 

 [*279]  if it takes effect only from its engrossment, then it was in time and the act of Assembly has been complied with.
I am clear the law was not perfected until it had been engrossed. It is not necessary to examine how far a law would be defeated for want of engrossment, but we are not to assume that such omissions or neglect of duty would occur, but we must assume that all things will be done, and rightfully done, which the law requires. I only say that notice of the existence of a law, penal in its character, can only be imputed to persons interested therein, from the date of its engrossment.
It would be unjust [**70]  to require any party to know the existence of a law while it is in its crude state previous to engrossment. When amendments have been made, or rejected, pending a bill, it becomes a matter of importance, in order to understand precisely the true purport of the enactments which may have been adopted, that every provision should be clearly and distinctly written out in their proper order, and this is the office of engrossment. Till this is done the law has not been perfected.
Upon this subject, Jefferson, in his Manual, sec. 31, says: "In reducing numerous, difficult and illegible amendments into the text, the secretary may, with most innocent intentions, commit errors," &c.: and, if the secretary cannot know the contents of an act until it is engrossed, how much more difficult would it be for strangers?
After a careful examination, I have been unable to find any case deciding this very point, and therefore it must be determined, as a new question, upon general principles.
Formerly it was the practice to engross bills before their third reading, and not afterwards to receive amendments, but Jefferson, in his Manual, sec. 31, says this practice has been departed [**71]  from, and bills are now amended upon their third reading and afterwards engrossed. This only shows that engrossment is an essential part of legislation. The same author says, sec. 48, that bills are to be signed by the respective presiding officers, after the engrossment--hence it is to be inferred that the act was not complete till engrossed. Bouvier, (Law Dic., Vol. 1, page 273,) says, in regard to the proceedings of Congress, that "when a bill is engrossed, and has received the sanction 

 [*280]  of both houses, it is sent to the President for his approval;" and the same is said in 8 Bacon Abr., 214. From this it appears, that after the engrossment the sanction of both houses is necessary. In a recent case in California, The People vs. Clark, 1 Cal. 407, the court say: "If no time be specified when a statute shall be in force, it ought to go into effect from and after its passage, that is, from and after the point of time when its existence is perfected." In the matter of Richardson, 2 Story's Rep., 580, it is said by the learned judge, "If there be any choice, as to the principle of interpretation, one should think [**72]  that ought to be adopted, in cases of this sort, which is most favorable to private rights and public justice;" and these remarks were made in regard to the very question now before us.
From what I have said, I am of opinion, that in point of fact, so far as we can learn from the disclosures in the record, the bond was given in time, and that the comptroller might have accepted the bond as required by the act of Assembly.
Inasmuch as there has been no default on the part of the clerk, the bond may still be approved and filed, and said approval would relate back to the day when the bond was presented by the clerk at the office of the comptroller.
Not regarding the office of the clerk to be vacant, it was an error in the Superior Court to appoint General Smith.
TUCK, J.:
I am of opinion that the judge correctly declared the office of clerk to be vacant, on his neglect to comply with the act of 1856, ch. 286, without expressing any opinion as to the constitutionality of the fifth section. The constitution and laws vacated the office by such omission, on the part of the incumbent, to continue his bond, which I deem necessary to his discharging its functions, and the fact of omission [**73]  was a matter to be ascertained by the judge.
The office being vacant, the judge had a right to fill it, and this having been done, it was competent for him to pass an order, after the qualification of his appointee, directing the appellant to surrender the office to him.

 [*281]  I agree with the views expressed by my Brother MASON, on this part of the case, and think the orders appealed from should be affirmed. Differing from him as to the time when a bill passed by the Legislature becomes a law, I think the act under which these proceedings were had was consummate on the 8th of March, and that, consequently, the bond was not filed in the comptroller's office within the time limited by law.  

12 of 31 DOCUMENTS 

ROBERT B. GRIFFIN and WILLIAM LEE, vs. ELIPHALET H. MERRILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 364; 1856 Md. LEXIS 81 

DECEMBER, 1856, Decided 

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

This appeal was taken from an order of the court below, (FRICK, J.,) overruling the demurrers of the appellants to a bill filed against them by the appellee. Each defendant filed a separate demurrer upon the ground of multifariousness.

The bill alleges, in substance, that in February 1847, complainant purchased out the interest of Yeatman and Bayles in a firm composed of Yeatman, Bayles and Griffin, then trading in Baltimore city under the name of "Griffin, Yeatman & Co.," each partner being equally interested in the business; that Griffin was, at the time of this purchase, indebted to the firm for money withdrawn for his private purposes; that the assets consisted of a stock in trade and outstanding debts, which complainant was led to believe would be adequate to meet the liabilities of the firm, but though the stock was sold on the most advantageous terms and the collection of the debts diligently attended to, as hereinafter stated, the sum produced did not pay such liabilities by a large amount, which complainant has paid by advances from his private means; that Griffin has not assisted him in paying these [**2]  liabilities, nor paid his own indebtedness to the firm, nor his proportion of such advances, and that a large proportion of the outstanding debts have proved desperate and cannot be collected; that immediately after this purchase complainant formed a copartnership with Griffin and Lee, under the name of "Griffin & Co.," for the purpose of continuing the business of "Griffin, Yeatman & Co.," and it was agreed that "Griffin & Co." should, and they, in fact, did, purchase the stock in trade of "Griffin, Yeatman & Co.," at a valuation and transfer to their books the debts due "Griffin, Yeatman & Co.," and collect them without charge, and pay with the money so collected, as far as it would go, the debts due by "Griffin, Yeatman & Co.;" that there was no written copartnership, but it was understood that complainant, Griffin and Lee should be equal partners, and that Griffin and Lee should give their whole time and attention to the business, and the complainant, by his capital and credit, sustain and further the interest of the firm, and, in accordance with this agreement, the business was conducted during the continuance of the firm of "Griffin & Co.," from February 1847 to July 1848, when [**3]  it was dissolved by mutual consent, Griffin and Lee having the sole management thereof, and the complainant making advances to meet its liabilities for which he was to be reimbursed; that after this dissolution the complainant, by agreement with his former partners, took into his possession the books and papers of the firm, for the purpose of collecting the outstanding debts due the firm, and applying the proceeds to pay its liabilities or to reimburse himself the advances he had made for that purpose, and that he diligently attended to such collection so long as he resided in Baltimore, and on removing to New York, where he now resides, it was agreed between him and his late partners, that said books and papers should be placed in the hands of "J. D. Pratt & Co.," of Baltimore, for the purpose of collecting the debts still outstanding and paying the proceeds to the complainant, to reimburse him for his aforesaid advances; that Pratt & Co. have used every effort to collect these debts, and have collected and paid over to complainant considerable sums of money on account thereof, all of which, as well as that collected by himself, is duly credited on the books of the firm and charged [**4]  to the complainant; that said books and papers are still in the hands of Pratt & Co., who are still endeavoring to collect the debts remaining unpaid, and who represent that most of them are desperate and cannot be collected; that the stock in trade of "Griffin & Co.," at the time of said dissolution, was advantageously disposed of and the proceeds duly applied to pay the debts due by them.

The bill then further charges, that during its existence, and since the dissolution, of the firm of "Griffin & Co.," complainant has paid from his private means, over and above all receipts from the assets of both firms, large sums of money, and has used all diligence in collecting and rendering available such assets to pay the debts due by these firms, or to reimburse himself for advances made for that purpose, and has duly charged himself on the books with all money collected by him, or which has been paid over to him by Pratt & Co.; that he has long waited in the hope that he would be reimbursed from these assets, but finding most of the debts still due to be desperate, he believes little or nothing more can be realized from them, and that the advances for which he has not been reimbursed [**5]  amount to about $ 20,000; that Griffin and Lee are largely indebted to "Griffin & Co." for money withdrawn for their private use, and have not assisted the complainant in paying debts, nor reimbursed him for his advances for that purpose.

The bill then prays for an account of the partnership business of "Griffin, Yeatman & Co.," to the time complainant purchased the interest of Yeatman and Bayles; also for an account of the receipts and disbursements of the firm of "Griffin & Co.," on account of that of "Griffin, Yeatman & Co.," and of Griffin's liability for money withdrawn by him, and for losses in conducting the business of "Griffin, Yeatman & Co.," and his indebtedness therefor to the complainant; also for an account of the business of "Griffin & Co.," and that the debts still due them may be disposed of by sale or otherwise, and that a decree may be passed for payment to the complainant of such sums as may be found to be due him by Griffin and Lee upon the settlement of the accounts of the business of both firms, and for general relief 

DISPOSITION:
Reversed and bill dismissed.  

HEADNOTES:

A bill prayed for an account of the concerns of two distinct partnerships. One of the defendants was a partner in both firms, but the other was only a partner in the latter firm. HELD:

That this bill is multifarious, even though the latter firm, as such, became agent for collecting and disbursing the outstanding debts of the former firm, there being no good reason shown why an account should be taken in reference to the affairs of such agency.  

COUNSEL:
Geo. Wm. Brown for the appellants, argued:

1st. That the bill is clearly liable to the objection [**6]  of multifariousness. In its stating part it confounds matters distinct and unconnected, and charges several matters of distinct nature against the respondents. Lee had no connection whatever with the firm of "Yeatman, Griffin & Co.," and cannot be called on to account for any matter connected with that firm. Griffin is liable to account, as he was a partner in both firms, but Lee is only connected with the latter. The bill, therefore, has reference to subject matters which affect the respondents in different degrees, and its prayer demands several matters, of distinct natures, against the respondents. The case is, in all essential respects, similar to that of White vs. White, 5 Gill, 359, where the objection of multifariousness was sustained. See, also, Story's Eq. Pl., sec. 271, note, and 272. 1 Daniel's Ch. Pr., 383, note. 5 Paige, 65, Boyd vs. Hoyt. 6 Do., 22, Swift vs. Eckford. If Lee was a proper party on the ground of agency, then, on the same principle, Pratt & Co. should have been made parties to the bill.

2nd. That the order of the court, overruling the demurrer and ordering the respondents to answer over, may be appealed from. 5 Gill, 359. A demurrer to a bill for multifariousness,  [**7]  like a demurrer for a misjoinder at common law, goes to the whole bill, and, if allowed, the bill must be dismissed and cannot be amended. 5 Paige, 65. 6 Do., 22. 2 G. & J., 14, Gibbs vs. Clagett. 2 H. & G., 386, Wolf vs. Wolf. 1 Md. Rep., 266, Thomas vs. Doub. 2 Do., 176, Williams vs. West. 3 Do., 555, Ware vs. Richardson. 4 Do., 76, Maddox vs. White.

Thos. S. Alexander for the appellee, argued:

That the demurrers were properly overruled. The firm of Griffin & Co. having agreed to act as agent in settling up the business of the firm of Griffin, Yeatman & Co., and having transferred the accounts from the books of the last firm into its own books, the taking of this agency account is indispensable to the adjustment of the accounts of Griffin & Co. It may be true, in the abstract, that Lee has no direct interest in the state of the accounts of the firm of Griffin, Yeatman & Co., at the period of its dissolution, or of the account between that firm and the appellee, as its settling partner, but when it is considered that the firm of Griffin & Co., in assuming the duty of liquidating agents of the firm of Griffin, Yeatman & Co., undertook to distribute the surplus effects of [**8]  that firm between the parties in just proportions, and that the appellee was occasionally collecting debts and supplying funds for the discharge of the liabilities of the last named firm, and that after the dissolution of the firm of Griffin & Co., the business of the two firms became yet more blended in the hands of the appellee as settling partner, it would seem most convenient that all the accounts should be taken in one cause, in order that the fund in hand may be distributed according to the ultimate equities of the respective parties. The appellant, Griffin, and the appellee have a direct interest in the entire account asked for by the bill. It would be difficult to show that Lee would be exposed to any inconvenience in the taking of that account, and, on the other hand, a state of things may be imagined in which his interest would be advantaged thereby. The firm of Griffin & Co. may be indebted to the firm of Griffin, Yeatman & Co.; Griffin may be indebted to the firm of Griffin & Co., and in advance to the firm of Griffin, Yeatman & Co.; if the account is taken as prayed for by the bill, Lee may insist that the balance due from Griffin & Co. to Griffin, Yeatman & Co., to the [**9]  extent of Griffin's interest, shall be applied to the discharge of his indebtedness to Griffin & Co. This case is, therefore, as I think, clearly distinguishable from that of White vs. White, 5 Gill, 359, and as sustaining these views, see 1 Myl. & Cr., 624, Campbell vs. Mackay. 3 Do., 85, Attorney General vs. Cradock. 4 Do., 17, Attorney General vs. Parr, and same case in 8 Clark & Finnelly, 434. 6 Sim., 251, Lewis vs. Edmund. 11 Do., 283, Brown vs. Douglas. 5 Beav., 546, Benson vs. Hadfield, and same case in 4 Hare, 32. 2 Younge & Coll., 430, Davis vs. Cripps. 4 Hare, 9, Lund vs. Blanshard. 2 Coll., 316, Boyd vs. Moyle. 2 Chitty's Digest, 1612, citing 10 Jur., 833, Sanders vs. Kelsey. Story's Eq. Pl., sec. 539. 2 How., 619, Gaines vs. Chew. 3 Do., 333, Oliver vs. Piatt. 5 Do., 127, Nelson vs. Hill.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*369]  ECCLESTON, J., delivered the opinion of this court.
The appellants insist, that the demurrers should have been ruled good, upon the ground that the bill is multifarious. In support of which position they rely, with much confidence, upon White et al., vs. White, 5 Gill 359. [**10]  There the bill prayed for an account of the concerns of several distinct partnerships, some of the defendants not having been partners in all the firms; and there being nothing to show that either firm, as such, had any agency in regard to the concerns of the others, or of either of them. Henry White, (one of the defendants,) is said to have been the financier and agent, for many purposes, of the various firms, but he had never been a partner in either. The bill was finally dismissed, by the Court of Appeals, for multifariousness. And the facts we have mentioned had much, if not the controling influence, in that decision.
Under the demurrers we are, of course, to consider the statements contained in this bill, to be true.

 [*370]  The defendant, Lee, was not a partner in Griffin, Yeatman & Co., but was in Griffin & Co. On the dissolution of the former, their stock in trade was purchased at a valuation, and paid for by the latter, as we understand the bill. It also, appears to have been agreed, that the debts due to Griffin, Yeatman & Co., should be transferred to the books of Griffin & Co., which they were to collect without charge, and with the money so collected, were to pay [**11]  as far as it would go, the debts of Griffin, Yeatman & Co., or reimburse to the complainant the money advanced by him out of his private means for that purpose. Speaking in reference to the purchase of the stock in trade, and the debts to be collected, the bill says: "And in fact the said Griffin & Co. did so purchase the said stock in trade, and transfer said accounts of Griffin, Yeatman & Co. to their books, and collect said debts, and pay, as far as the money would go, the said debts." In a previous part of the bill, it is said: "That the assetts of said partnership of Griffin, Yeatman & Co., consisted of their stock in trade, and outstanding debts, which, as your orator was led to believe, and suppose, would be of sufficient value to meet the liabilities of said firm, but although the said stock was sold on the most advantageous terms, and the collection of said debts diligently attended to, as is hereinafter more particularly set forth, the sum produced did not pay the debts of said firm by a large amount, which your orator has paid out of his own private means; and that the said Robert B. Griffin has not assisted your orator in paying said liabilities, nor has he paid his own [**12]  indebtedness to said firm, nor his proportion of the money expended by your orator in paying said liabilities; and that a large proportion of said outstanding debts have proved desperate and cannot be collected."
The firm of Griffin & Co. was dissolved in July 1848, and the bill says: "Your orator further showeth, that after the dissolution of said firm, your orator, by agreement with his said partners, took into his possession the books and papers of said firm, for the purpose of collecting the outstanding debts, and applying the money received from them to the liquidation of the liabilities of said firm, so far as it would go, or of reimbursing 

 [*371]  himself for money advanced by him for that purpose; and that he diligently attended to the collection of said debts so long as he resided in said city, and on removing to the city of New York, where he now resides, it was agreed by and between your orator and his said late partners, that the said books and papers should be placed in the hands of Messrs. J. D. Pratt & Co., of the said city of Baltimore, for the purpose of collecting the debts of said firm still outstanding, and paying to your orator the proceeds of such collection [**13]  to reimburse him for advances made to pay the liabilities of said firm."
The bill likewise states, "that the said J. D. Pratt & Co. have used every effort to collect said debts, and have collected and paid over to your orator considerable sums of money on account thereof, all of which as well as money collected by your orator from said outstanding debts is duly credited on the said books of said firm, and charged to your orator. That the said books and papers are still in possession of the said J. D. Pratt & Co., who are still endeavoring to collect the debts remaining unpaid, and who represent to your orator, that the most of them are desperate and cannot be collected. And that the stock in trade of the said Griffin and company, at the time of said dissolution, was advantageously disposed of and the proceeds thereof duly applied to the discharge of the debts due by them."
The appellee considers this bill not liable to objection, on the ground of multifariousness, under the decision of White, et al., vs. White, although Lee was not a member of the first firm. There is said to be a material difference between that case and this, because here, Lee was a partner in Griffin & Co.  [**14]  , which firm, as such, became agents for collecting and disbursing the outstanding debts of Griffin, Yeatman & Co. This agency of the firm, in which Lee was a member, is supposed to distinguish this case from the one referred to, where the only agent spoken of is Henry White, who never had been a member of either partnership. But admitting this distinction to exist, still the fact of the agency now relied on cannot render it either necessary or proper, that Lee should be required to unite with Griffin in accounting, with regard to the 

 [*372]  concerns of the first firm, unless it appears there is some good reason why he should so account in reference to the affairs of the agency. And we see no such reason.
The bill shows plainly, that the debts which Griffin & Co. were to transfer to their books, for the purpose of collecting and disbursing on account of the first firm were so transferred; the collection was diligently attended to, and the money received, was paid over according to agreement; leaving uncollected only such of those debts as were desperate and could not be collected.
Although the bill may show a liability to, and a necessity for accounting with, the complainant,  [**15]  on the part of the two defendants, in reference to the concerns of the second firm; and also on the part of Griffin, in regard to the affairs of the first, still the facts stated do not exhibit any indebtedness to, or necessity for accounting with, the complainant, by the second firm, or by Lee as a member thereof, or in any character, in reference to an agency, or any matter arising from, or connected with, the firm of Griffin, Yeatman & Co. On the contrary, the bill shows, that the stock in trade purchased by the last partnership was paid for, that their collecting agency was faithfully attended to, and the proceeds duly applied, they having collected all the debts, and paid over the money, except such as were desperate and could not be collected.
It likewise appears that, after the dissolution of the second firm, by mutual consent, the complainant, by agreement of the parties, took possession of the books and papers of the firm, for the purpose of collecting the outstanding debts and applying the money arising from them; that subsequently, with the consent of the parties, the said books and papers were put into the possession of J. D. Pratt & Co., for the purpose of collecting [**16]  the debts still outstanding and paying the proceeds over to the complainant, to reimburse him for advances made on account of the liabilities of the said firm of Griffin & Co.; which books and papers still remain in the hands of J. D. Pratt & Co.
Demurrers to the bill were filed in White, et al., vs. White, and overruled by the court below; which decision was reversed 

 [*373]  by the Court of Appeals, and the bill dismissed. According to the principles there established we consider the present bill liable to objection for multifariousness, and that the court were wrong in overruling the demurrers; consequently, a reversal of their decision, and dismissal of the bill, must necessarily follow, but without prejudice and without costs.
Reversed and bill dismissed. 

13 of 31 DOCUMENTS 

JOHN R. GILES vs. MARIA EBSWORTH and JOHN HAYS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 333; 1856 Md. LEXIS 78 

DECEMBER, 1856, Decided 

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

Replevin, brought by the appellant against the appellees, for the recovery of certain goods. The defendants avowed the taking under a distress for two quarters' rent due Mrs. Ebsworth under a lease from her to one Joseph Tucker. The plaintiff pleaded that Tucker did not, during the time, possess and enjoy the premises under a lease from Mrs. Ebsworth; and there was an agreement to waive all errors in pleading, and that special matter might be given in evidence, under the above plea and avowry, as if pleaded.

1st Exception. The defendants, after having given sufficient notice to the plaintiff's counsel to produce the original lease referred to in the avowry, and it not being produced, proved, by John W. Mortimer, that he, as agent of the avowant, leased, by contract in writing, to Tucker, the store and dwelling known as No. 112 Baltimore street, for five years, commencing on the 1st of May 1849, at an annual rent of $ 700, payable quarterly, on the first of May, August, November and February, and that Tucker entered under this lease; that at the time of the levy of the distress rent was in arrear for the two quarters ending [**2]  on the 1st of August and November 1852; and then offered to prove by this witness the following authority to him, as agent, to make the distress:

"I hereby constitute and appoint John W. Mortimer, of the city of Baltimore, in the State of Maryland, my true and lawful agent, to rent out my house, No. 112, on the north side of Baltimore street in said city, and to collect and receive the rents for the same, and to use all lawful remedies, actions, distress, and other necessary proceedings for the recovery of the same, and to employ any and all manner of agents or bailiffs, in my name, and for me to make distress for, or otherwise recover said rents, and generally to do for me and in my name whatever he may deem necessary and proper for the securing and recovery of said rents, or any part thereof. Given under my hand and seal, this first day of December 1852.

MARIA EBSWORTH,   (Seal.)

To the admissibility of this evidence the plaintiff objected, upon the ground that this power of attorney was no authority to the witness to levy a distress for rent which had accrued prior to its execution. This objection the court, (FRICK, J.,) overruled, and admitted the evidence, and [**3]  the plaintiff excepted.

2nd Exception. It was then proved that Tucker made and delivered to Mortimer, on the 1st of June 1852, the day of its date, his promissory note for $ 175,87, at three months, payable to the order of Mortimer and Mowbray, for the quarter's rent to become due on the 1st of August 1852, Mortimer giving, as agent of Mrs. Ebsworth, the following receipt attached to a bill made out against Tucker for the rent and interest till the note would mature: "Rec'd note at three months from June 1st, 1852." This note the avowant produced at the trial, and offered to surrender it to the plaintiff. Mortimer also proved in relation to this note, that it was not taken in satisfaction of the rent, but given and received for Tucker's accommodation in the payment of that quarter's rent; that a few days after its receipt witness had it discounted by the Union Bank, and remitted a portion of the proceeds to the avowant, residing in New York; that whilst this note was running, Tucker told witness he had made an assignment to one Richardson; that the note was paid by witness on the day it became due, (it having been endorsed to the Bank, by the firm of Mortimer & Mowbray, of which [**4]  witness is a member,) and has remained in his possession up to the time of trial; that he never presented it for payment to Richardson trustee of Tucker; that some time in July 1852, the plaintiff called upon witness and said he was about to purchase from Tucker, his unexpired interest in the lease, and asked him how the rent stood, to which witness replied, that he held Tucker's note for the rent to the 1st of August 1852, but did not tell him that it had been discounted, or when it became due; that he has no recollection of saying to the plaintiff, at that time, that he had no apprehension the note would not be paid at maturity, nor that he would be happy to have the plaintiff as a tenant; that the plaintiff called on him to know whether he would give an extension of Tucker's lease, which witness declined to do until Tucker's time was out; that some time in August 1852, the plaintiff called on witness and said, the roof of the house was in a leaking condition, and asked witness for authority to repair it, which he at first refused to give, as it would be interfering with Tucker's lease, but finally gave him such authority: but he does not know whether the roof was ever repaired;  [**5]  that nothing was then said by either party, about the rent which had become due on the 1st of August; that on the 4th of September 1852, witness sent the plaintiff a note informing him that Tucker owed Mrs. Ebsworth one quarter's rent, and asking whether he had made any arrangement with the plaintiff for its payment; that on the 1st of November of that year, the plaintiff tendered witness the quarter's rent, due on that day, which he refused to take, unless all the rent in arrear was paid. This witness also proved, that he was now in advance to the avowant $ 200, on account of this rent.

It was further proved, that in July 1852, Tucker assigned his interest in the lease to the plaintiff for a bonus of $ 300, and gave him possession of the dwelling a short time before the 1st of August of that year, but that he did not get possession of the store until some time in September following, and that the plaintiff paid Tucker the rent for the dwelling until he got possession of the whole premises; that on the 15th of August 1852, Tucker made an assignment of all his property to Richardson, for the benefit of his creditors, and that the goods which he had, remained in the store until [**6]  some time in September, when they were sold by the trustee. It was also proved, that the plaintiff has paid to the attorney of Mrs. Ebsworth, all the rent which has accrued since the 1st of November 1852. The attorney for the plaintiff proved that he stated to the attorney of Mrs. Ebsworth, that the plaintiff, when he first employed witness in the matter, had told witness that Mortimer had said to him, that all the rent had been paid by note up to the 1st of August, and that he had no apprehension that the note would not be paid at its maturity; and also, further said to plaintiff, that he would be happy in having him for a tenant. The record then states, that the avowant offered in evidence the "following warrant to distrain," directed to John Hays, sheriff, and the proceedings under the same. (The warrant, dated December 7th, 1852, is signed by Mortimer, as agent for Mrs. Ebsworth, and directs the sheriff, in the usual form, to distrain the goods of the plaintiff in the house in question, "for $ 350, being two quarters' rent, due me for the same on the first day of November last." The record does not show that any account and affidavit were attached to the warrant.) It was proved [**7]  that the distress was levied, and all the proceedings under it conducted by a deputy sheriff, and that the sheriff never entered in person on the premises, and was not present at any time, when the distress was being made.

The plaintiff then offered in evidence a deed of the premises, dated the 17th of May 1839, from Mrs. Ebsworth to John W. Mortimer, by which the property was conveyed to the grantee in fee-simple in trust, to permit the grantor during her life to possess and enjoy the same, "and the rents, issues, income and profits thereof to receive, take and apply to her own use and benefit," and the receipts of the grantor "alone shall be good and effectual acquittances and discharges for such rents," &c., and after her death, the property "to descend and become the estate and property of her children." This deed was offered for the purpose of showing, that at the time of making said distress the avowant had not the legal title to the premises, and therefore could not distrain. To the admissibility of which evidence the avowant objected, the court sustained the objection, and the plaintiff excepted.

3rd Exception. The avowant then asked an instruction to the jury, that [**8]  if they find the lease from Mortimer, as agent for Mrs. Ebsworth, to Tucker, as stated in Mortimer's evidence, the sale of his unexpired term by Tucker to the plaintiff, and that two quarters' rent amounting to $ 350, was in arrear and unpaid, before the distress given in evidence was issued and levied, then the avowant is entitled to recover, notwithstanding her agent, Mortimer, took the note of Tucker for the quarter's rent due in August 1852, as stated in the evidence, unless the jury further find that this note has been paid. This prayer the court granted, and the plaintiff excepted.

4th Exception. The plaintiff then asked instructions to the jury, in substance as follows:

1st. This prayer asserts, that the distress was wrongful and the avowant could not justify under it, if the jury find that during the continuance of the lease to Tucker, the plaintiff, and Mortimer as agent of Mrs. Ebsworth, agreed that Tucker should be discharged and the plaintiff adopted as tenant, and that the plaintiff entered in pursuance of this agreement on or before the 1st of August 1852.

2nd. That if the jury find that Mortimer, as agent for the avowant, received from Tucker the note [**9]  offered in evidence, for the rent to become due on the 1st of August 1852, and gave the receipt therefor offered in evidence, and before its maturity passed the same to the Union Bank for discount, and its discount by the bank, and that he remitted the proceeds or any part thereof to the avowant before the distress was levied, then avowant cannot justify under the distress, though the jury may find the note was not paid by Tucker at maturity.

3rd. If the jury find from all the evidence, that this note was received by Mortimer, as agent, in full satisfaction and discharge of the quarter's rent due on the 1st of August 1852, the avowant is not entitled to justify under the distress, though they find the note was not paid at maturity.

4th. If the jury find from all the evidence, that all the amount of rent has been remitted by Mortimer, the agent, to Mrs. Ebsworth, including the two quarters' rent distrained for, then the avowant cannot justify under the distress offered in evidence.

5th. That the authority offered in evidence by the avowant, is insufficient to sustain the distress relied upon.

6th. This prayer asserts that the distress was wrongful, because it was [**10]  levied, and all the proceedings under it were executed, by a deputy sheriff; the warrant having been directed to the sheriff, who never entered upon the premises.

7th. This prayer denies the avowant's right to recover, if the jury find from all the evidence, that the plaintiff before entering as tenant, called on the agent of the avowant and inquired what rent was due, and that such agent stated that all the rent had been paid by note up to the 1st of August 1852, and that he had no apprehension that the note would not be paid at maturity, and did not disclose when the note became due, and that there was any misrepresentation or wilful silence on the agent's part, as to any fact relating to the rent, whereby the plaintiff was induced to become the tenant; and that such agent, by a fair and proper discharge of his duty to his principal, could have made the quarter's rent from the goods of Tucker on the premises.

8th. That if the jury find that the note in proof was received by Mortimer, on account of the quarter's rent due August 1st, 1852, and was in his possession at the time the distress was levied, then the distress was premature and illegal; unless the jury find that [**11]  notice was given to the tenant in possession, of the intention to levy the same by the avowant, or that the note was tendered to the plaintiff before the levy, provided they find that before the plaintiff took possession, Mortimer told him he held the note on account of the rent, which he had no doubt would be paid.

The court granted the first prayer and refused the others. To this refusal the plaintiff excepted, and the verdict and judgment being against him, appealed.

Upon motion of the appellees a writ of diminution was granted, to correct the omission of the account and affidavit attached to the warrant to distrain, contained in the second exception. Under this writ the defendants moved the court to amend the record, by ordering the clerk to insert in the second exception, immediately before, and as annexed to the warrant to distrain, the account and affidavit filed with the motion, and referred to in the deposition of the defendant's attorney, taken in support of the motion. This deposition is to the effect, that the account and affidavit were upon the same sheet of paper with the warrant, when it was offered in evidence at the trial, but that now this sheet, in its [**12]  entirety, cannot be found among the papers in the cause in the clerk's office, but only that half of the sheet containing the warrant to distrain; and that the account and affidavit proposed to be inserted in the exception, are copies as nearly as deponent can recollect of those upon the paper at the time of trial. The court, (LEE, J.,) passed an order directing the clerk to insert this account and affidavit in the second exception as indicated by the motion. To the passage of this order the plaintiff excepted, as also to the taking of depositions for the purpose of amending, altering or adding to the matter, form and substance of the said second exception, because the court has not, either under its practice, or under the writ of diminution, any warrant or authority in law so to do. But the court overruled these exceptions, and ordered the clerk to amend the second exception as directed by the former order, and these proceedings were, in pursuance of the command of the writ of diminution, certified to the appellate court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A power of attorney appointing an agent to rent out a house, "collect and receive the rents therefor," and to use all lawful remedies, actions, distress, and other necessary proceedings, and generally to do for and in the name of the party giving the power, whatever the agent "may deem necessary and proper for securing and recovering the same," authorises the agent to levy a distress for rent due before its execution.

In an avowry for rent the tenant cannot offer in evidence a deed dated prior to the lease, "for the purpose of showing that at the time of making the distress the avowant had not the legal title to the premises and therefore could not distrain;" a tenant cannot dispute his landlord's title, though he may show that it has expired.

Taking security for the rent does not forfeit the remedy by distress; and taking the tenant's note for the rent, without an agreement that it should operate as satisfaction therefor, can only suspend the remedy by distress until it becomes due, after which the landlord may distrain, even though he has negotiated the note, provided he takes it up at maturity.

A prayer, "that the authority offered in evidence by the avowant is insufficient to sustain the distress relied upon," is bad for uncertainty, it not clearly appearing, whether it relates to the warrant to distrain and the proceedings thereunder, or to the authority under which the avowant's agent acted, which was also given in evidence.

A warrant of distress may be directed to a sheriff, and he may execute it by one of his sworn deputies: since the act of 1834, ch. 192, a landlord cannot execute his own distress.

The landlord's remedy by distress is not confined to the goods of his tenant: he may take any goods on the premises which are not exempted by law,

The proceeding by distress, authorised by the act of 1834, ch. 192, are void, unless the provisions of the act are complied with, and in an avowry for rent, the warrant to distrain and the proceedings under it, are facts to be found by the jury, and they must appear to be correct.

A prayer, which does not leave it to the jury to find the warrant and the proceedings under it, but assumes every thing to have been done which the law requires, is erroneous.  

COUNSEL:
Edward Holloway and T. Yates Walsh for the appellants, argued:

1st. That the power of attorney given by the [**13]  avowant to Mortimer, dated the 1st of December 1852, was no authority to him to levy a distress for rent, which had accrued due prior to the time of its execution.

2nd. That the deed of trust from Mrs. Ebsworth to Mortimer, dated the 17th of May 1839, and offered in evidence by the appellant was admissible, for the purpose of showing that the avowant had not the legal title to the premises at the time the distress was levied, and clearly shows that such was the case. 32 Eng. C. L. Rep., 374, Pascoe vs. Pascoe. Bradby on Distress, 89, 96, 100. 58 Eng. C. L. Rep., 1033. Pollock vs. Stacy, 53 Law Lib., 116. 3 H. & McH., 1, Tschudy vs. The State. 7 Md. Rep., 346, Hintze vs. Thomas.

3rd. That the taking by Mortimer of the note of Tucker, for the rent to become due on the 1st of August 1852, and the subsequent discount of this note by the Union Bank, and the remittance of a portion of the proceeds thereof to the avowant, destroyed the right to distrain for that quarter's rent. 5 Term Rep., 513, Kearslake vs. Morgan. 5 Johns., 68, Tobey vs. Barber. 11 Do., 518, Witherby vs. Mann. 6 H. & J., 166, Patapsco Ins. Co., vs. Smith. 2 G. & J., 493, Glenn vs. Smith.

4th. That it was [**14]  a question for the jury, whether or not Mortimer took this note in payment and satisfaction for that quarter's rent, and the court therefore erred in refusing the appellant's third prayer and granting that of the avowant, which took that question from the jury. And the avowant's prayer is also bad, because, it took from the jury the question whether that portion of the proceeds of the discount of the note, admitted to have been remitted by Mortimer to the avowant, was a loan to the tenant or an advance to the landlord, and also because it assumes both the fact of the distress and the levy, and the regularity of both, and of every thing connected therewith. 3 Gill, 31, Bullitt vs. Musgrave. 4 Md. Rep., 242, Balto. & Susq. Rail Road Co., vs. Woodruff. 14 Eng. Law & Eq. Rep., 371, Parrott vs. Anderson. 5 Md. Rep., 389, Yates vs. Donaldson.

5th. That the warrant to distrain and the proceedings had under the same, and offered in evidence by the avowant, are not sufficient in law to justify the taking of the appellant's goods. The omission of the account and affidavit, required to be annexed to the warrant, is a fatal defect. Act of 1834, ch. 192. 5 Md. Rep., 195, Joynes vs. Wartman.  [**15]  This question arises under the appellant's fifth prayer, and also under the avowant's prayer, which asserts the right of the avowant, notwithstanding this omission.

6th. That the warrant to distrain being directed to the sheriff, did not authorise him to appoint a deputy to make the distress which was therefore wrongful. 35 Eng. C. L. Rep., 256, Toplis vs. Grane. 5 Denio., 545, Lord vs. Brown. 5 Barbour, 286, Moulton vs. Norton. It is no part of the official duty of a sheriff, to execute a distress. No such power is given to him in his official capacity by any act of Assembly. By the act of 1825, ch. 21, a constable is required to execute a distress warrant, but before that time he was not required to do it.

7th. That it was a question for the jury, whether or not the agent of the avowant had, by any fraud or misrepresentation, induced the appellant to become the tenant of the premises. 6 Md. Rep., 255, Mayor & C. C. of Balto., vs. Williams.

I. N. Steele for the appellees argued:

1st. That the power of attorney from Mrs. Ebsworth to Mortimer, authorised the collection by distress or otherwise, of all rent due and unpaid after its date.

2nd. That the deed of [**16]  trust offered in evidence by the appellant "for the purpose of showing that the avowant had not the legal title to the premises and therefore could not distrain," was properly excluded:--1st. Because upon its true construction and legal effect, which were questions for the court, it could not avail the appellant for the purpose for which he offered it. 3 Md. Rep., 548, Ware vs. Richardson. 14 Mees. & Wels., 172, Williams vs. Waters; and 2nd. Because the appellant was estopped from denying the title of the avowant. Comyn on Landlord & Tenant, in 6 Law Lib., 293, 294, and cases there cited.

3rd. That the appellees' prayer was properly granted, and the second and third prayers of the appellant properly refused: 1st, because the taking of Tucker's note by Mortimer for one quarter's rent, and his having the same discounted, and the remittance of part of the proceeds to the avowant, did not take away the right of the avowant to distrain after the note was overdue and unpaid. 2 G. & J., 493, Glenn vs. Smith. 5 Md. Rep., 389, Yates vs. Donaldson. 29 Eng. C. L. Rep., 166, Davis vs. Gyde; and 2nd, because there was no evidence that this note was received in satisfaction of the rent for [**17]  which it was given.

4th. That the fifth prayer of the appellant was properly rejected: 1st, because it is vague and uncertain, and might have misled the jury; 2nd, because, "the authority offered in evidence by the avowant," whether these words refer to the power of attorney to Mortimer, or the warrant to the sheriff, was sufficient to justify the distress; and 3rd, because even if there was any irregularity in the proceedings had under the warrant to distrain, which is denied, no question in reference to these proceedings is presented by this prayer.

5th. That the warrant to distrain being directed to the sheriff, and not to the bailiff of the landlord, was properly and legally executed in the sheriff's name by one of his deputies; and the sixth prayer of the appellant was, therefore, properly rejected. Watson on Sheriff in 7 Law Lib., 17, 20, 25. Acts of 1825, ch. 21; 1834, ch. 192, sec. 4, and 1842, ch. 208 sec. 1. 17 Wend., 35, Van Renselaer vs. Quackenboss. 2 Kinney's Law Comp., 581, and cases there cited.

6th. That the seventh prayer of the appellant was properly rejected: 1st, because there is no evidence in the cause that Mortimer, even if the avowant could be [**18]  held responsible for his fraudulent misrepresentations, did, by any fraud or misrepresentation, induce the appellant to become the tenant of the premises; and 2nd, because the various facts recited in this prayer did not constitute a valid defence against the right of the avowant to distrain.  

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

OPINIONBY:
TUCK 

OPINION:

 [*343]  TUCK, J., delivered the opinion of this court.
The first exception in this record relates to the authority from Mrs. Ebsworth to Mortimer, under which the distress was laid, it being contended, on the part of the appellant, that it did not authorize the collection of rents due at its date. The paper does not, in terms, confine Mortimer to the collection of such rents as might arise under leases to be made thereafter by him, but confers power to receive rents generally, and to use means to that end as fully as Mrs. Ebsworth herself might employ. We agree with the court below, that it was sufficient for the purpose for which it was offered in evidence, that is to say: to prove Mortimer's authority to act, in this case, as her agent.
The second exception was taken to the admissibility of a [**19]  deed from Mrs. Ebsworth to Mortimer, dated in 1839, for the property demised, offered by the appellant "for the purpose of showing, that at the time of making the distress the avowant had not the legal title to the premises, and therefore could 

 [*344]  not distrain." A tenant cannot dispute the landlord's title, though he may show that it has expired. This deed was not offered for this latter purpose, on the concession that the title was in the appellee at the time of the lease. Its effect, according to the appellant's construction, would have been to deny her title at that time, as well as on the day of the distress; and was properly rejected. We express no opinion on the construction of the deed, but dispose of this exception on the hypothesis, that it passed the title to Mortimer.
The plaintiff below offered eight prayers, all of which were refused, except the first.
The second, third and eighth, relate to the note of Tucker, taken by the appellant's agent, for one quarter's rent. It is clear, that taking security does not forfeit the remedy by distress. Act of 1842, ch. 208. The promissory note of the tenant ought not to have any greater effect than that of [**20]  another person, or any other security passed by him to the landlord. What difference can it make to the tenant, that his note is discounted, provided it be in the hands of the landlord to be surrendered at the proper time? It appears to have been taken for the tenant's accommodation, and could only operate as a suspension of the other remedy until it became due. When a party takes a negotiable instrument, we are not to infer a collateral agreement, that the holder is not to use it. The law makes no such presumption. Why change the form of the transaction at all, if the party was not to have such benefit from it, in its new form, as he might derive from other paper of the same kind? It was the tenant's duty to have paid this note himself. As he did not, and it was taken up by the agent of the appellee, the remedy by distress was properly resorted to. There was no agreement that it should operate as satisfaction, nor any evidence legally sufficient to warrant that inference. It was in possession of the avowant, at the trial, and tendered to the appellant, and that is all that the law requires. The refusal of these three prayers is therefore affirmed.
The fourth prayer was properly [**21]  rejected, because there was no evidence tending to show, that all the rent had been remitted 

 [*345]  by Mortimer to the avowant. The only evidence on the point, related to part of the quarter's rent for which the note was given.
The fifth prayer has been treated by the appellant's counsel, as if it related to the warrant to distrain, and the proceedings in pursuance thereof. We think it might as reasonably apply to the authority under which Mortimer acted as agent, and, for its uncertainty, was well refused.
The sixth prayer presents the question, whether, when a warrant to distrain is directed to a sheriff, he may execute it by one of his sworn deputies? It has been the practice to employ sheriffs and constables for this purpose. The act of 1825, ch. 21, authorises the latter officer to act, and allows him the fees paid to sheriffs for similar services, which would seem to recognize the sheriff's authority in such cases. But, aside from this view of the question, the landlord may direct his warrant to a bailiff, and if he cannot find any person to act in that capacity, is his remedy to fail? Before the act of 1834, ch. 192, he might have executed his own distress, but [**22]  now a warrant is required, which we understand to be a denial of the landlord's right to act for himself. The remedy being given in terms, by the act, and no person being specified who is obliged to act for the landlord, there may be a necessity for directing the warrant to an officer of the law, and if such officer has deputies known to the law, their acts done in his name must be taken as his acts. Besides, the act of 1834, recognises sheriffs, constables and bailiffs, as competent to levy these warrants.
The seventh prayer submits to the jury, to find that the appellant became tenant of the premises, in consequence of the misrepresentations or wilful silence of Mortimer, as agent, when there is no such evidence in the cause. And it also assumes, as law, that so long as any goods of Tucker were on the premises, the property of Giles could not be distrained. The landlord's remedy is not confined to the goods of his tenant; he may take any on the premises, not exempted by law; and there is nothing to show a right of exemption in this case.

 [*346]  For these reasons we think the court ruled correctly, in rejecting the above prayers of the appellant.
The avowant also offered [**23]  a prayer, which we are of opinion ought not to have been granted. It was decided in Joynes vs. Wartman, 5 Md. 195, that the distress proceedings authorized by the act of 1834, are void, unless the provisions of the act are complied with. The warrant and proceedings are facts to be found by the jury, and they must appear to be correct. In this prayer the jury was not required to find whether there was any warrant, or other proceedings under the distress, but every thing is assumed to have been done which the law required. We cannot overlook defects of this kind. Such has been the law of this court for many years, and numerous cases have been determined on similar grounds. For this reason the judgment must be reversed, and the cause remanded under a procedendo.
In thus disposing of the case, it becomes immaterial whether the record be amended or not, for, upon the new trial, it will be competent to the parties to supply the missing account and affidavit, on proving the loss of them.
Judgment reversed and procedendo awarded. 

14 of 31 DOCUMENTS 

THE SPRING GARDEN MUTUAL INSURANCE CO. vs. RANDALL EVANS, use of JAS. P. RILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 1; 1856 Md. LEXIS 1 

JUNE, 1856, Decided 

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

Covenant, by the appellee against the appellant, a Pennsylvania corporation, doing business by agents in Baltimore, to recover $ 1500 upon a fire insurance policy, issued by the appellant to Evans upon certain merchandise in a store in Winchester, Virginia. Plea, non infregit.

1st Exception. The plaintiff offered in evidence the policy sued on, which expired on the 29th of January 1850, and proved that the fire occurred on the 20th of March 1849. The only condition of the policy material to this case is the ninth, which is fully set out in the opinion of this court. The plaintiff also proved that the loss by the fire amounted to at least $ 1500, and the assignment of the policy to Riley after the fire. He then offered the testimony of Hammond and Lavender, and the notice given by him to produce the papers containing the preliminary proof, all of which is sufficiently stated in the opinion of this court. To the testimony of Lavender, so far as it details declarations of the president of the company, the defendant objected, because they were not binding upon defendant without proof of special authority from the company, but the [**2]  court (FRICK, J.) overruled this objection and permitted the evidence to go to the jury, and to this ruling the defendant excepted.

2nd Exception. The defendant then asked instructions to the jury, in substance as follows:

1st. That the plaintiff is not entitled to recover in this action, unless the jury find from the evidence in the cause that Evans, before the institution of this suit, furnished to the defendant such preliminary proof of his loss as is required by the 9th condition of the policy sued on, unless they further find that the furnishing of such proof was waived by the defendant.

2nd. (This prayer is fully stated in the opinion of this court.)

3rd. That the declaration testified to by Lavender, as made by a person representing himself as the president of the defendant, was not a waiver by defendant of the production by the plaintiff of the preliminary proof required by the 9th condition of the policy, unless the jury find from the evidence that such declaration was made by such person by authority of the defendant, and that by it the plaintiff was deceived and misled as to the nature of the proof he was required to furnish of his loss.

4th. That [**3]  the failure of the defendant to produce the papers referred to in the notice served by the plaintiff upon its attorney, the defendant giving no reason or excuse for such non-production, does not authorise the jury to presume or find that such papers contained the preliminary proof of the plaintiff's loss required by the 9th condition of the policy, and that such failure or refusal is not a circumstance from which the jury can legally presume that such papers contained such proof.

5th. That the onus is on the plaintiff to prove that he furnished to the defendant the preliminary proof of his loss required by the 9th condition of the policy, and that it is not incumbent upon the defendant to prove that such proof was not furnished.

6th. That if they find the facts stated by Lavender, and that the person with whom he had the conversation did not point out or specify any particular defect in the plaintiff's proof of loss, that such failure of said person to point out and state what, if any, were the defects in the plaintiff's proof, does not of itself, nor in connection with the facts detailed by Lavender, amount to a waiver by defendant of the preliminary proof, which, by the [**4]  9th condition of the policy, the plaintiff was bound to furnish to defendant.

The court granted the 1st and 5th prayers, but rejected the others, and to this rejection the defendant excepted.

3rd Exception. The defendant then objected to the testimony of Hammond, in so far as it relates to the contents of papers delivered by him at defendant's office in Philadelphia, because the notice served upon defendant had not laid a sufficient foundation therefor. This objection was overruled, the court refusing to entertain it at this stage of the cause, being after all the prayers on both sides had been presented and discussed, and the instructions of the court given thereon to the jury; and the testimony itself objected to, having been read to the jury as a portion of that on which the prayers were discussed and upon which the instructions of the court were based. To the refusal of the court to entertain this objection, the defendant excepted.

The verdict and judgment were in favor of the plaintiff for $ 1905, damages and costs, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Where the evidence is so loose and inconclusive that the jury, instead of making legitimate and reasonable inferences, would be indulging in conjecture and wild speculation were they to find from it the fact sought to be established, the court may instruct them that there is no evidence of such fact.

The president of an insurance company on being asked "what further preliminary proof of the loss was required," answered, that "the policy will show that." HELD, that this answer was not a tacit admission that there was no objection taken to any defect in the preliminary proof that had been furnished, nor a waiver of such proof.

The non-production of papers after notice duly served has no other legal effect than to allow the opposite party to prove their contents; the refusal to produce does not authorise any inference against the party refusing.

But where a party, under the obligation to sustain his defence by proof, has possession of the best evidence and fails to produce it, but attempts to sustain his defence by inferior evidence, it authorises the inference that he does not furnish the best, because it would injure, instead of benefitting, his cause.

Where all the facts and circumstances relating to the subject are admitted, a party has the right to ask the court to instruct the jury whether the evidence is sufficient to establish a waiver or not.

A prayer by the defendant that there is no evidence of a waiver, necessarily concedes the truth of all the plaintiff's evidence, and all legitimate inferences which may be drawn from it.  

COUNSEL:
Charles H. Pitts for the appellant, argued:

1st. That the refusal [**5]  of the court below in the third exception to receive the objection to Hammond's testimony is error, for which the judgment should be reversed. Before the act of 1825, ch. 117, it was not necessary to make objections to testimony below. In Handy vs. The State, 7 H. & J., 43, illegal evidence had been received without objection, and the Court of Appeals rejected the evidence and reversed the judgment. They cite Gittings vs. Hall, 1 H. & J., 14, as authority for this principle, which is also recognised in the case of Whittington vs. Farmers Bank of Somerset & Worcester, 5 H. & J., 489, and 6 H. & J., 548. The act of 1825 changes the rule established by these cases only so far as to prohibit the parties from urging and insisting upon any point or question before the appellate court, which should not appear by the record to have been raised or made in the court below, and "upon which that court may have rendered judgment." This act does not say at what time the point or question shall be made in the inferior court. It may be made at any time during the trial before the case is given to the jury. Evan's Pr., 298. In Hoddy's Lessee vs. Harryman, 3 H. & McH., 584, testimony was read to the [**6]  jury without objection, and the day after objection was made to it and sustained by the court, and the Court of Appeals, in 3 H. & McH., 591, say: "The General Court had a right to direct the jury that the testimony offered and admitted by the parties was illegal and inoperative, the Court of Appeals being of opinion that they are not bound by the admissions of the parties." The appellant having made its objection in time, the court's refusal to entertain it deprived the defendant of the right to have the question as to its admissibility decided by this court, and the judgment of the court below denying this right ought to be reversed.

2nd. The first exception presents the question as to the admissibility of that part of Lavender's testimony in which he details the declarations of the president of the company. The president is not a party to the suit, and his declarations are not admissible on that ground. If admissible at all, they were so only upon the ground that he was the agent of the company and had authority to bind it by such declarations. There was no evidence to show that he had such authority by express grant, or as incident to his office under the charter and laws [**7]  of the company. Corporations, like natural persons, are bound only by the acts and contracts of their agents, made and done within the scope of their authority. "The representations, declarations and admissions of the agent of a corporation stand upon the same footing with those of the agent of an individual. To bind the principal they must be within the scope of the authority confided to the agent, and must accompany the act or contract which he is authorised to do or make." Angel & Ames on Corp., 288, 293, 301, 302. 7 H. & J., 104, City Bank of Baltimore vs. Bateman. In deciding the question raised by this point this court is not confined to the ground of objection stated in the exception. If the testimony was inadmissible upon any ground, the judgment must be reversed upon this exception. 3 G. & J., 441, Sothoron vs. Weems.

3rd. The next point presents questions raised by the 2nd, 3rd and 6th prayers of the appellant. The only evidence in the record that the plaintiff furnished the preliminary proof required by the 9th condition of the policy is that of Hammond. Could any rational mind legally find from that testimony that such proof was furnished? 2 G. & J., 382, Davis vs.  [**8]  Barney. There is, also, no evidence of waiver. The only testimony relied on to prove it is that of Lavender. This, so far from showing a waiver, shows a direct assertion that the company required the proof "laid down in the policy." The policy was in the possession of the plaintiff, and he had merely to look at the 9th condition and be at once informed of the kind and quantity of proof which he had to furnish. In the case of the Columbian Ins. Co. vs. Lawrence, 2 Pet., 53, Chief Justice Marshall, in delivering the opinion of the Supreme Court, says: "We know of no principle or usage which requires the underwriters to specify their objections, or which justifies the inference that any objection is waived." The objection to pay the loss was based upon the insufficiency of proof to satisfy the company that there was so large a stock of goods as the plaintiff claimed to be paid for. It cannot be a waiver, because that which is said to be waived is clearly "within the objection." 6 Md. Rep., 359, Tyson vs. Webster, Adm'r of Macauley. The ground of the refusal to pay is not inconsistent with the requirement of preliminary proof. The person speaking as president did not deny the liability [**9]  of the defendant except as to amount. The amount was to be determined by proof. The proof was "laid down in the policy," the very thing said to have been waived was expressly insisted on. In the cases of Allegre vs. Md. Ins. Co., 6 H. & J., 411, 412, and Md. Ins. Co. vs. Bathurst, 5 G. & J., 159, the court put the waiver, in the first case, upon the ground that the company denied that the subject of loss was covered by the policy; in the second case, that the ground taken by the company was wholly inconsistent with a demand for preliminary proof. In this case the ground of refusal was not thus inconsistent. The question of waiver is not exclusively for the jury. It is for the court to say, upon an admitted state of facts, whether there is a waiver in law or not. The 6th prayer embodies and admits all the facts bearing upon the question of waiver, and the court was therefore properly asked to instruct the jury that these facts did not in law amount to a waiver. The 3rd prayer was improperly rejected. The jury could not legally find a waiver without first finding that the declarations relied upon were the declarations of the defendant by its authorised agent. The declarations could not [**10]  be construed as a waiver, unless the plaintiff was thereby misled and deceived as to the proof he was required to furnish. If the declarations informed him that the company insisted upon a compliance with the 9th condition of the policy, of course there was no waiver in fact or in law.

4th. The court erred in refusing the defendant's fourth prayer. A party is not bound to produce papers under notice. The refusal to produce papers gives the adverse party a right to offer parol proof of their contents. This is the only legal effect of a notice, and failure or refusal to produce papers. Evan's Pr., 293. 1 Greenlf. on Ev., sec. 37. 3 Camp., 363, Cooper vs. Gibbons. 1 Starkie's Rep., 314, Lauson vs. Sherwood. 4 How., 246, 247, Clifton vs. The United States. 7 Md. Rep., 101, Union Bank vs. Kerr.

Robert J. Brent and Charles F. Mayer for the appellee, argued:

1st. The first exception is to the testimony of Lavender, so far as it details the declarations of the president, and the reason stated for the objection is that the declarations were not binding on the company without proof of special authority. We must therefore assume that the objection is to these declarations of the [**11]  president, or a person whom the proof tended to show was the president. 2 Greenlf. on Ev., sec. 518. 1 M. & Malk., 200, Barrett vs. Deere. It will be observed that the papers relating to the preliminary proof had been left with the president by Hammond, and that the company failed to account for their non-production even after service of notice to produce them. Every presumption, therefore, that can be drawn from the withholding of the papers under circumstances like these should be drawn as against the company. But the true question is, whether these declarations are not admissible for the purpose of the cause? If admissible for any purpose there is no error in the ruling of the court. The rule of law is, that the objector to evidence must confine his objection strictly to that which is illegal. If some of the declarations are admissible for any purpose and a part inadmissible, then the court did right in overruling a general objection to all of them. 3 Gill, 220, Budd vs. Brooke. Tested by this rule, there can be no difficulty in saying that so much of the declarations as referred to the report of the agent and the size of the room, and its consequent incapacity to hold the goods [**12]  claimed to have been lost, was clearly admissible, because it went to the merits of the claim, by enabling the plaintiff to show:--first, on what ground his claim was resisted, and, secondly, that the ground of defence was untenable in fact. This view of the evidence excepted to would of itself sustain the ruling of the court in the first exception.

But the declarations were admissible further:--first, as a tacit admission, that there was no objection taken to any defect in the preliminary proof furnished to the company in March 1849, through Hammond. If the company retained the proof, and on being interrogated afterwards as to their reason for not paying, objected on a ground going alone to the merits of the claim, it certainly was legitimate evidence tending to satisfy the jury that there was in fact no defect in the preliminary proof now withheld by the defendant. The notice to produce certainly entitled us to give secondary evidence of the contents of the proof furnished. If we could show that the president had expressly said that the proof in his possession was full and complete, we could certainly have offered that declaration after notice to produce and failure to gratify [**13]  it, and so we are entitled to prove any declaration tending to show a tacit acquiescence in the sufficiency of the preliminary proof. This much of the declaration was therefore evidence for the jury in considering the sufficiency of the preliminary proof thus withheld by the defendant. But, secondly, even in cases where the preliminary proof is adduced and shown to be clearly defective, the company, through its proper officer, may waive the objection and render it unnecessary to supply the defect. All the authorities show that the assignment of a ground of defence going to the merits, and the failure to rely upon objections to the preliminary proof, is a waiver of objection to such proof. This much is clear, but the weight of authority is in favor of the proposition, that the insurance company are bound, when receiving preliminary proof, to disclose the specific defect, that the party seeking indemnity for loss may at once supply the formal defect if in his power. This proposition seems to commend itself by considerations of equity and good faith, and by maintaining in full force the broad distinction between matters of form which may be supplied and the substance of the claim itself,  [**14]  and we maintain it as sound law upon the following authorities: Angell on Fire & Life Ins., secs. 242 to 248, and the cases there cited. 6 Cush., 342, Clark vs. New Eng. Ins. Co. 6 Cowen, 404, Francis vs. Ocean Ins. Co. 3 Comst., 122, O'Niel vs. Buffalo Ins. Co. 2 Do., 53, Bodle vs. Chenango Ins. Co. 1 Hoff. Ch. Rep., 172, McEvers vs. Lawrence. 7 Cowen, 462, Dawes vs. North River Ins. Co. 25 Wend., 383, McMasters vs. Westchester Ins. Co. 16 Do., 385, Etna Ins. Co. vs. Tyler. 2 Pet., 25, Columbian Ins. Co. vs. Lawrence. 10 Pet., 507, Columbian Ins. Co. vs. Lawrence. 9 How., 390, 403, Taylor vs. Merchants' Ins. Co. 6 H. & J., 408, Allegre vs. Md. Ins. Co. 5 G. & J., 159, Md. Ins. Co. vs. Bathurst.

The question of waiver is for the jury, 25 Wend., 381, McMasters, et al., vs. The Westchester Mutual Ins. Co., and therefore the evidence was properly admitted, as it, at least, tended to prove a waiver. But it may be said that there could be no waiver at the time of that conversation, because it was then too late to have supplied the defect if any had been pointed out. The Court of Appeals have an obiter dictum to that effect in 3 Gill, 186, Edwards vs. Balto. Ins. Co. But it will be [**15]  observed, that in that case the loss occurred in November 1839, and the alleged waiver was, by letter of the president, on the 3rd of March 1840, a period of four months, as applied to a case where all the parties, insurers and insured, resided in Baltimore, though the goods were burnt in the country at a considerable distance. In the present case the fire was on the 20th of March 1849, at Winchester, Virginia, where the plaintiff resided; the preliminary proof was delivered at defendant's office, in Philadelphia, a few days afterwards, and the alleged waiver was in the conversation occurring on the 4th of May 1849, that is one month and some fifteen days after the loss. Now it is expressly said in the same case, in 3 Gill, 187, 188, that the condition requiring notice to be "forthwith" given, signifies simply "due diligence under all the circumstances of the case," and that "is a question for the jury." And we refer on this point also to 9 Wend., 163, Cornell vs. Le Roy. In the case above cited, from 9 How., 403, the preliminary proof was not furnished until nine months after the loss, and yet a waiver at that time was held sufficient. It was not then too late for this plaintiff to [**16]  have supplied the defect in his preliminary proof if disclosed to him.

But it is said, that the declarations of the president to Lavender reserved any existing defect in the preliminary proof, by referring him to the policy for the proof necessary. To this we answer:--First, that as yet no specific defect has been shown by the company, but every presumption arises against them by the suppression of the papers. 4 How., 246, Clifton vs. The United States. Secondly, that the policy could not determine wherein the proof already furnished was defective, unless the defect should be pointed out or the proof returned to the plaintiff, that he might compare it more carefully with the terms of the policy. Lavender enquired what "further proof was necessary" The reference to the policy could not elucidate the enquiry, nor could the company retain the proof furnished and at the same time require proof de novo, because if such a demand had been assented to and full preliminary proof furnished as of the 4th of May 1849, it would enable the company to raise the question of tardiness in the proof. The plaintiff tendered himself ready to cure any defects in form, and is insultingly told to go [**17]  and prepare his papers over again, and this a month and-a-half after the proof, such as it was, had been furnished, and while the defendant perversely held the papers and superciliously refused to point out to the witness or to the court on the trial any defect whatever in the proof so promptly furnished. Thirdly, that it is manifest from the evidence of Lavender that the president had discovered no defect in the proof, as he declared there were several printed forms of policies in the office, and he did not even know which one to give to Mr. Lavender as applicable to the plaintiff's policy. It is therefore plain and palpable that the president was not at that time aware of any existing defect, and had discovered none, nor has he yet proved there was any defect of form. On the contrary, this company refuses to furnish the papers in their possession, and then say that the plaintiff must prove that these papers are not defective. The exception went on the ground of want of authority in the president, but, non constat, that if necessary we could not have afterwards shown the authority to make these declarations, the order of the proof being with the party offering it. But the authority [**18]  of the president must be presumed: we find that waiver of preliminary proof has always been allowed on the declarations of presidents of insurance companies. Angell on Ins., sec. 243. 6 Cush., 342, Clark vs. New Eng. Ins. Co. And in 3 Gill, 186, the court clearly imply that the president had authority to make the waiver if his letter had in law amounted to such a waiver.

2nd. The second exception brings up the 2nd, 3rd, 4th and 6th prayers, which were rejected. The second prayer was properly refused, because it assumes as its basis, first, that there is a total failure of evidence to show the furnishing of the preliminary proof, and, secondly, a total failure of evidence tending to show a waiver of such proof. If either ground assumed in the prayer is untenable, the court will not reverse the ruling of the court below. But we insist that both grounds taken are untenable, as shown by our observations and authorities cited on the first exception. We have shown that the question of waiver was for the jury, and it was therefore a vice in the third prayer to instruct the jury that it was no waiver. But the prayer was moreover vicious in requiring special proof of authority to the president,  [**19]  as also shown in our argument on the first exception. The fourth prayer is also erroneous, because it proceeds upon the ground that the refusal of the defendant to produce the papers furnished by the plaintiff was not a circumstance from which, with other proof in the cause, the jury could presume that the suppressed papers contained the preliminary proof. But the court will find that such non-production will, in special cases, give rise to a presumption in "odium spoliatoris," and the law will presume that the papers withheld would make out the case of the adversary. Now this is not the case of the non-production of the defendant's own papers or documents, but it is the case of papers left by the plaintiff with the defendant for its action. If the defendant refused to allow the claim, the plaintiff had, at least, an interest in having access to his own papers that he might prove on the trial their contents. It is rather like the case where there is but one instrument between the parties, and the production of which is necessary to the plaintiff's case, and where the court will on motion order the production of papers. 1 Greenlf. on Ev., sec. 559. But here the papers were left at defendant's [**20]  office in Philadelphia, and there was no power in the court to compel a foreign corporation to produce a document not in the jurisdiction. Surely this is sufficient, under all the circumstances, to raise the most unfavorable presumption against this corporation when refusing to produce papers in which the plaintiff has a common interest, if not exclusive property. It is not the case of a mere bailee of papers refusing to return them to the true owner upon notice, and it is not in principle the same as the celebrated case of the goldsmith, refusing to produce a precious stone bailed to him for a specific purpose. 1 Strange, 505, Armory vs. Delamirie. Suppose a corporation withholds a partnership book or document, and will not produce it on notice, will the court presume nothing against it, but require strict proof of its contents? And here is the case of an insurance company receiving the plaintiff's papers for examination and for its decision on the claim. It refuses to pay, withholds the papers on notice, and yet insists that if produced they would appear to be defective. Truly it would be strange if the law held out a premium to parties thus to defeat the ends of justice and the [**21]  attainment of the truth. In a case where the owners of the aggressive ship failed to produce a letter written to them by the master of the damaged ship, it was presumed that the letter contained an admission of the damage. 3 Greenlf. on Ev., sec. 408, and 1 Do., sec. 37, and especially 4 How., 246. The 6th prayer was equally defective if the above views expressed by us are correct, so far as we have considered the question of waiver.

3rd. The third exception is nothing more, as shown on its face, than an offer to rule out secondary evidence after a notice duly served to produce the primary, and after the secondary had been given to the jury without objection, and after the prayers had been framed on it by the defendant itself. It is therefore respectfully submitted, that the judgment must be affirmed.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*13]  ECCLESTON, J., delivered the opinion of this court.
Whether there was error in refusing to grant the second prayer of the defendant, contained in the second bill of exceptions, we propose first to consider; and in doing so the plaintiff will be allowed the full benefit of all [**22]  the testimony of his witnesses, Hammond and Lavender. For which purpose the correctness of the decisions below, in regard to the first and third bills of exceptions, will be conceded, without, however, deciding whether they were correct or not.
The prayer alluded to asks the court to instruct the jury, "that there is no evidence in this cause that such preliminary proof of loss, as required by the 9th condition of policy, was furnished by said Evans before the institution of this suit, and that there is no evidence that such preliminary proof of loss was waived by defendant, and that the plaintiff is not entitled to recover in this suit."
The following is the language of the 9th condition of the policy: "Persons sustaining any loss or damage by fire, shall forthwith give notice thereof in writing to the company, secretary or agent. And as soon after as possible, they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hand. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also whether any and what other insurances have been made on the same [**23]  property; what was the whole value of the subject insured; in what general manner (as to trade, manufactory, merchandize or otherwise,) the building insured or containing the subject insured, and the several parts thereof were occupied, at the time of the loss, and who were the occupants of 

 [*14]  such building, and when and how the fire originated, as far as they know or believe. They shall also produce a certificate under the hand and seal of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, stating that he has examined the circumstances attending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the insured claimants; and that he verily believes that he, she or they, have, by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured, to the amount which the magistrate or notary public shall certify. And until such proofs, declarations and certificates are produced, the loss shall not be payable."
In reference to the preliminary proof thus required, the plaintiff examined G. W. Hammond, who says: "It was, I think, on the 22nd of March [**24]  1849, two days after the fire, that I went to Baltimore. In compliance with the request of Mr. J. P. Riley, I called, on the 23rd, the day after my arrival, at the office of Mr. Lovegrove, agent for this company, to present certain papers and to arrange the settlement of the loss. I was informed by a person who I took for the clerk of Mr. Lovegrove, that he, Mr. Lovegrove, was in the country and would not be in until late in the evening. I left with the clerk for Mr. Lovegrove's inspection the papers sent by Mr. Riley, among which were a notice of the loss and a transfer of the policy to Mr. Riley. I accordingly called again on the following day and found Mr. Lovegrove in the office. I cannot now remember all that passed in conversation between Mr. Lovegrove and myself, but this I remember, that he declined taking any step in the matter, returned me the papers I had left for his inspection, and referred me to the office of the company in Philadelphia, giving as a reason for this that the company was about to close and discontinue the agency in Baltimore. I went to Philadelphia the following day, I think, and soon after my arrival I called at the office of this company, saw, I think,  [**25]  the president and secretary of the company, stated what had passed at the office of their agency in Baltimore, and presented the papers of Mr Riley. 

 [*15]  I was informed by the president that their board would meet on a certain day, and then the matter would receive proper attention, but until then nothing could be done. As this day would not arrive until after my departure, I requested him to report the action of the board to Mr. Riley, which he said he would do."
If this testimony is the only evidence on which the plaintiff can properly rely to show a compliance with the 9th condition of the policy, the defendant certainly had a right to ask the court to instruct the jury there was no evidence that such preliminary proof as the policy required had been furnished; for the witness, Hammond, in speaking of the papers which he took to the agent in Baltimore, and afterwards to the office of the company in Philadelphia, does not profess to give the contents, or to speak of the character, of any of them, except that he says, "among them were a notice of the loss and a transfer of the policy." Instead of making legitimate and reasonable inferences, a jury would be travelling in the [**26]  fields of conjecture and wild speculation were they to find upon such proof as this that not only the notice of the loss but the other requirements of the 9th condition had been complied with.
But in aid of the testimony of this witness the plaintiff relies upon that of Mr. Lavender. The conversation of the president of the company with this witness is supposed to be a tacit admission, that there was no objection taken to any defect in the preliminary proof furnished to the company, through the agency of Hammond. Let us see with what propriety such a supposition is entertained. The witness had called to know why the loss had not been paid, stating at the time if there was any deficiency in the proof he would try to supply it. The person, representing himself as president of the company, said they had sent an agent to Winchester, and from his information they did not believe there could have been so much stock in a little room 10 by 12 feet. The witness denied the correctness of the information given by the agent, and then enquired what further proof was wanted? The president replied "the policy will show that;" or "it is laid 

 [*16]  down in the policy." The witness asked for a [**27]  blank policy, but none was furnished, the president stating they had several forms of policy, and he did not know which one was used in this case. Thus it will be seen, that after speaking of the difference of opinion in regard to the size of the room and the quantity of goods it contained, Mr. Lavender wished to know what further proof was required, and he was answered, by being told the policy will show that, or it is laid down in the policy. The enquiry was not whether any further proof was required, but what further proof? and the answer being as already stated, to such a question, so far from being a tacit admission, that there was no objection taken to any defect in the preliminary proof, it was in truth just the reverse, and amounted to an assertion that further preliminary proof was necessary; for if none was required the policy could not possibly show what further proof was required; and if it could show that further preliminary proof was necessary, then the conversation was not a tacit admission of there being no objection to any deficiency in the proof.
The following notice to the defendant was served upon its attorney: "Take notice, that on the trial of the above cause [**28]  you are required and notified to produce the written notice of loss by fire, sent to you by the above plaintiff, and left with you in Philadelphia shortly after said fire, as also the account of the particulars of the plaintiff's loss by said fire, accompanied and verified by his affidavit, and the certificate of a magistrate or notary public, certifying his opinion of the amount of said loss by fire, and that the same was occasioned without fraud or evil practice, which said last two papers were also delivered to your company, shortly after said fire, and before this suit." Because the defendant neither produced the papers mentioned in this notice or gave any excuse or reason for not producing them, the plaintiff insists that such conduct on the part of the defendant, in connection with the other proof in the cause, authorized the jury to presume that the papers contained the necessary preliminary proof. But the position here assumed is not sustained by the authorities. In such a case as this the non-production of the papers has 

 [*17]  no other legal effect than to allow the opposite party to prove their contents. The refusal to produce does not authorise any inference against [**29]  the party refusing.  Cooper vs. Gibson, 3 Camp. Rep. 363. Lawson & another, Assignees of Shiffner, vs. Sherwood, 1 Stark. Rep.c 314, in 2 Eng. Com. Law. Rep. 405. 1 Greenlf. on Ev., secs. 37, 560. Evans' Pr., 293. Roscoe on Ev., 6.
The plaintiff's attorney, however, seems to consider his view of this question fully sustained by the case of Clifton vs. The United States, 4 How. Rep. 246. But the unfavorable inference there allowed against the party for not producing the papers was under very different circumstances from the present. There it was contended on the part of the United States, that the goods in question had been forfeited by the claimant in consequence of his having fraudulently imported them. And the court below, under the 71st section of the act of 1799, (as the Supreme Court say they had a right to do,) "had pronounced the proof sufficient to establish the offence, unless explained or rebutted by opposing evidence."
The counsel for the government, with a view of further strengthening their cause, and in pursuance of previous notice for that purpose, called upon the claimant for the production of his books [**30]  and papers having relation to the importation of the goods. But neither the books or papers were produced, or any account given for the non-production. And on page 246 it is said: "Probable cause for the prosecution having been thus sufficiently established, the claimant went into his defence, and instead of furnishing evidence of the prices actually paid by him to the houses abroad from whom the goods were purchased, as he might have done, either by executing a commission to take their testimony, or by persons concerned in making the purchases, or by the production of the books of account that had been called for, as the call afforded him an opportunity to put them in evidence, he placed the defence altogether upon the judgment and opinions of merchants and other persons acquainted with this description of goods, as to the value and cost of the article in the home market, tending 

 [*18]  thereby to confirm and support the correctness of the valuations as fixed in the invoices."
In the instructions given below it was stated: "That the claimant knew from whom he had bought the goods, and what was their actual cost, and yet had not produced the testimony, or accounted for its absence;  [**31]  that to withhold testimony which it was in the power of the party to produce, in order to rebut a charge against him, where it is not supplied by other equivalent testimony, might be as fatal as positive testimony in support or confirmation of the charge. And that if the claimant had withheld testimony of his accounts and transactions with these parties, (meaning the foreign houses from whom he had purchased the goods,) the jury were at liberty to presume that, if produced, they would have operated unfavorably to his case."
It is evident that the Supreme Court affirmed these instructions, because they were given at a stage of the case when probable cause for the prosecution had been established, and the onus of exonerating himself from the charge by proof was therefore cast on him. And a very serious charge it was, involving in its result not only the loss of considerable property, but loss of character also, being accused of violating the revenue laws of the country, by means of frauds and perjuries.
On page 247 the court use this strong language: "Under these circumstances the claimant was called upon by the strongest considerations, personal and legal, if innocent, to bring [**32]  to the support of his defence the very best evidence that was in his possession, or under his control. This evidence was certainly within his reach, and probably in his counting-room, namely, the proof of the actual cost of the goods at the place of exportation. He not only neglected to furnish it, and contented himself with the weaker evidence, but even refused to furnish it on the call of the government, leaving, therefore, the obvious presumption to be turned against him, that the highest and best evidence going to the reality and truth of the transaction would not be favorable to the defence."
Now in the case before us there was no obligation on the defendant to show any defect in the preliminary proof, until 

 [*19]  the plaintiff had first made out a prima facie case of compliance with the requirements of the policy on that subject, which we think has not been done. The decision, therefore, in Clifton vs. The United States, cannot with propriety be applied to the present question. In truth that decision only recognizes the principle, that when a party under an obligation to sustain his defence by proof, has in his possession important evidence on the subject and fails [**33]  to produce it, but attempts to establish his defence by evidence of inferior character, it authorises an inference that he does not furnish the best, because it would injure, instead of benefitting, his cause. And we see no reason for doubting the correctness of the position, already stated upon the authorities referred to, that the present failure to produce the papers under the notice only allowed the plaintiff the right to prove their contents.
After a careful consideration of all the circumstances, we are brought to the conclusion that the first proposition contained in the defendant's second prayer is right; and that the court ought to have instructed the jury there was no evidence in the cause that such preliminary proof as the 9th condition of the policy required, had been furnished by the plaintiff before the institution of the suit.
The prayer also contains the proposition, that there was no evidence that the preliminary proof of loss was waived by the defendant, which, in our opinion, is also correct.
The conversation between Mr. Lavender and the president is the proof which is relied upon to establish a waiver. But we suppose what has been said in reference to that conversation [**34]  is sufficient to show, that instead of considering it as any proof of an implied waiver, it is a negation of any such implication.
The counsel of the plaintiff, however, says the court were right in refusing the prayer, because, whether there was a waiver or not, was a question for the jury, and not for the court.
In Edwards vs. The Baltimore Fire Insurance Co., the plaintiff prayed the court to instruct the jury, "that if they believed the facts set out in the foregoing statement, the defendants 

 [*20]  have waived the adduction, by the plaintiff, of the preliminary proofs required by the conditions annexed to said policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same." Which prayer the court refused, and the decision was affirmed.  3 Gill 185. Now if the doctrine contended for by the counsel for the present plaintiff is correct, with reference to the circumstances of this case, it is reasonable to presume the late Court of Appeals would have placed their affirmance of the decision just referred to, upon the ground that the prayer presented a question to the court, which was exclusively [**35]  for the consideration of the jury; but they give not the least intimation of their entertaining such an opinion. On the contrary the court enter into an argument to show that if the letter, supposed to create the waiver, could be so construed, it could be of no avail to the plaintiff, because at the date of the letter it was too late to supply any defect in the preliminary proof. And then, on page 187, they decide the letter not to be a waiver, without intimating a doubt of their authority to treat the question as one of law.
Where all the facts and circumstances relating to the subject are admitted, in our opinion a party has the right to ask the court to inform the jury whether the evidence is sufficient to establish a waiver. Here there is no conflict of testimony, the proof being all on one side; and the prayer is such that it necessarily concedes the truth of all the plaintiff's evidence, and all legitimate inferences which may be drawn from it. That such is the necessary concession of the prayer, may be seen by referring to M'Elderry vs. Flannagan, 1 H. & G. 308, where it is said: "Before the court could legally give the instruction prayed for by the appellee,  [**36]  they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants' favor, and the existence of all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee." See also Cole vs. Hebb, 7 G. & J. 20, and Guy vs. Tams, 6 Gill 82.

 [*21]  In the absence of evidence to show that such preliminary proof as the policy made necessary had been furnished, and no waiver of that proof having been established, the plaintiff, of course, had no right of action, and therefore the second prayer should have been granted.
From the views already expressed it is evidently proper, in our opinion, that the decision below should be reversed, because the defendant's fourth and sixth prayers were refused.
Having thus settled the important questions involved in this controversy, we suppose it unnecessary to express any opinion in regard to the other matters referred to in the argument.
Judgment reversed and procedendo ordered. 

15 of 31 DOCUMENTS 

SAMUEL HESS, THOS. N. REID and others, vs. THOS. POULTNEY and DAVID U. BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 257; 1856 Md. LEXIS 72 

DECEMBER, 1856, Decided 

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

A scire facias, under the mechanics lien laws, was issued at the instance of the appellees, from the court below, on the 1st of June 1852, reciting that the appellees, trading under the firm and style of "Brown and Poultney," on the 15th of May 1852, filed in said court a claim against Samuel Hess, for the sum of $ 876.10, against a certain lot of ground, particularly described, on Portland street in the city of Baltimore, improved by the erection of nineteen houses thereon, for work and labor, and materials furnished in and upon said houses, as per statement filed, and that afterwards, on the 25th of May 1852, the claimants amended their original lien, making Thos. N. Reid, Henry S. Taylor and John D. Reid, defendants, having understood that they were owners or reputed owners of the lot and houses, upon each of which they claim a lien for work and labor done, and materials furnished to the amount of $ 46.12 1/2, respectively. The writ then commands the sheriff to make known to the said Samuel Hess, Thos. N. Reid, Henry S. Taylor and John D. Reid, and to all persons holding and occupying the buildings, to appear and show cause why [**2]  the said sum of $ 876.10, should not be levied of said buildings.

The sheriff returned the writ, "copies set up on the most conspicuous part of the premises, and made known to the defendants, and advertised according to law as per advertisement hereto annexed." All the defendants named in the writ appeared and filed a plea, denying that the plaintiffs furnished the materials as charged in their claim, upon which issue was joined.

Exception. The plaintiffs offered in evidence their original and amended claims for lien, filed at the respective dates mentioned in the writ. The original claim is entitled as against Samuel Hess, and states that the plaintiffs, "copartners, trading under the firm and style of Brown and Poultney, claim the sum of $ 876.10, against a certain lot of ground," (which is there particularly described as situated on Portland street,) "improved by the erection of nineteen houses," (whose dimensions are also particularly given,) "for work and labor and materials furnished in and upon said houses, as per statement filed as part of this lien," and directs the clerk "to file and record the above as a lien, as well against the houses and lot aforesaid, as against [**3]  Samuel Hess the owner or reputed owner thereof, according to the provisions of the act of Assembly in such case made and provided." The statement referred to in this claim, and annexed to it, is an account headed, "Mr. Samuel Hess to Brown and Poulthey Dr.," and consists of various charges for items of hardware, such as hinges, latches, locks, screws, nails, &c., commencing on the 2nd of January 1851, and ending on the 24th of April 1852, and amounting to $ 876.10. The amended claim is entitled as against Samuel Hess, Thos. N. Reid, Henry S. Taylor and John D. Reid, and after referring to the filing of the original lien, states that the plaintiffs have since understood "that Thos. N. Reid, Henry S. Taylor and John D. Reid, are also the owners or reputed owners of the said lots of ground and houses thereon erected, upon each of which said houses they claim a lien for work and labor, and materials furnished, to the amount of $ 46.12 1/2 respectively," and directs the clerk "to file and record the above, as well against the houses and lots aforesaid as against Thos. N. Reid, Henry S. Taylor and John D. Reid, the owners or reputed owners thereof, according to the provisions of the act [**4]  of Assembly in such case made and provided, as per statement filed as part of this lien." There was an entry of satisfaction on the lien docket as to the 11th house.

The plaintiffs then proved by their clerks, that the goods mentioned in the claim were sold by them to Samuel Hess, and were delivered at the times and periods named in said bill, some to Samuel Hess, some to his workmen, and that some were sent from the plaintiffs' store by drays, the draymen being directed to take them to houses on Portland street, and that it was the understanding between the plaintiff and Hess, that the goods so delivered were for the Portland street houses, named in the said lien. They further offered the letter dated May 15th 1852, and post-marked may 18th, and directed to "Henry S. Taylor firm of -----," which is set out in the opinion of this court.

The defendants then offered in evidence the book of original entries produced by the plaintiffs, in which the articles mentioned in the lien were charged. In the first item, of date January 2nd, 1852, are the words ("in Pratt above Green street,") this and all the other charges being against Samuel Hess alone. It was proved that the words [**5]  above quoted, were inserted by one of the plaintiffs' clerks by the direction of the other, as the place to which the items charged in the entry were to be delivered, because the houses in Portland street were not then in a condition to receive the goods. It was further proved, that these houses were not completed until the spring of 1852. The defendants further offered in evidence a contract for the building of these houses, between John D. Reid and Henry S. Taylor, of the one part, and Samuel Hess, as contractor, of the other part, dated the 28th of March 1851, and then asked the following instructions to the jury:

1st. That there is no sufficient evidence in the case, to establish such notice to the defendants, of the claim for lien set up by the plaintiffs, to enable them to recover in this action:--1st, because the notice was not directed to the reputed owners; 2nd, because it did not contain the statement of the kind of materials furnished, nor the amount claimed to be due; 3rd, because it referred to a claim, for a lien to have been filed at a period when no such lien had been left for record in the clerk's office; 4th, because it was not specific and definite as required [**6]  by the lien laws; and 5th, because the plaintiffs in said notice, did not state that they intended to claim the benefit of the lien given by the acts of Assembly.

2nd. That if the jury believe from the evidence, that the materials charged in the claim were furnished on the credit and individual liability of Hess, and not on the credit of the buildings, the plaintiffs are not entitled to recover.

3rd. If they believe from the evidence, there was no more than $ 25 to $ 30 worth of hardware, used or furnished in the erection or construction of the eighteen houses, the plaintiffs are not entitled to recover more than such amount upon each house.

4th. That there is no evidence in the case, upon which the plaintiffs can recover for the goods alleged to have been delivered prior to March 28th, 1851, the date of the contract between Hess and Reid and Taylor.

The plaintiffs then asked the following instructions:--1st, If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the houses and lots named in the lien, at the instance of Hess as contractor, that the lien was filed within six months of [**7]  the furnishing of the articles, for record in the proper office, that a notice of the same was properly served on the owner or reputed owners of the property, then the plaintiffs are entitled to recover, although the jury should also believe, that a part of the articles were furnished prior to the date of the contract of the 28th of March 1851.

2nd. If the jury find the facts stated in the first prayer, then the plaintiffs are entitled to recover, though the jury should also believe a part of the articles were furnished, prior to the date of the contract, of the 28th of March 1851, provided they find that this part was so furnished for said houses, Hess being at the time contractor.

3rd. If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the houses and lots named in the lien, at the instance of Hess as contractor, that the lien was filed for record in the proper office, on the 15th of May 1852, and that notice thereof was given to the owners or owner of the property, by letter postmarked the 18th of May 1852, as offered in evidence, then the plaintiffs are entitled to recover, for all the materials [**8]  furnished under such contract.

4th. If the jury believe from the evidence, that the articles named in the bill attached to the lien filed in this case, were furnished to the extent of $ 46.12 1/2, as stated in the lien to Hess, on the house situated on the corner of Portland and Emory streets, and that the lien was filed within six months from the delivery of the articles, then the plaintiffs are entitled to recover, to the extent of this sum on the said property embraced in the lien filed.

The court (FRICK J.) granted the defendants' second and third prayers, but refused their first and fourth, and granted all of the plaintiffs' prayers. To this refusal and the granting of the plaintiffs' prayers, the defendants excepted, and the verdict and judgment being against them appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

The notice from the material-man to the owner, under the mechanics lien law of 1845, ch. 176, sec. 1, must state, as the act requires, the claimant's "intention to claim the benefit of the lien," and the omission of this in the notice is a fatal defect.

Though the lien laws are to be construed independently of the rule requiring a strict interpretation of all acts in derogation of the common law, still the words of the law must be substantially complied with.  

COUNSEL:
William Pinkney White for the appellants, argued:

1st. That the defendants' first prayer ought to have been granted. While the act of 1845, ch. 287, requires the original lien law and its supplements to be construed as remedial laws, still no court has ever said that the requirements of these laws are to be dispensed with. The contrary is expressly [**9]  held in 5 Md. Rep. 422, Kees vs. Kerney. In this case the acts of 1838, ch. 205, and 1845, ch. 176, sec. 1, were not followed as far as the notice from the material-man to the owner is concerned:--1st, the notice was not directed to the "owner or owners," nor was it properly served. The rule of law in regard to notice to parties where they do not occupy the position of partners, is fully ssated in 1 Amer. Lead. Cases, 259, 327. In such cases notice to one is not notice to the other, and the service of notice on one is not presumed to be a service on the other. But even if Reid had heard there was a notice in the hands of his co-defendant Taylor, would this be sufficient to bind him, when the law requires that the notice shall be "in writing?" The notice given should be clear and explicit, stating the names of the owners, and should be directed to and served upon each owner. 2nd. It did not state as it should, the kind of materials furnished and the amount claimed to be due. The object of the Legislature was to advise the owner of claim for materials and the amount, that he may protect himself in settling with his contractor. That such is the meaning of the law, is clear from the 8th [**10]  section of the act of 1845, ch. 287, which empowers the owner who has received proper notice under the act of 1845, ch. 176, to retain from the cost of the building "the amount which he may ascertain to be due to the party giving such notice." How is he to ascertain the amount, unless it be specified in the notice? That I am right in this view of the law, is apparent from the act of 1846, ch. 290, extending the lien laws to Washington county, the 4th section of which requires the material-man to give notice to the owner, "of the amount due him, and whether for work done or materials furnished." 3rd. The letter which it is sought to metamorphose into a notice, instead of stating as required by law, that the plaintiffs intended to claim the benefit of the lien, actually waives the right to such lien. The act of 1845, ch. 176, sec. 1, not only requires the notice to be given in writing, but that it shall contain the declaration of the materialman, that he intends "to claim the benefit of the lien." In all notices regulated by statutory enactment, the provisions of the statute must be strictly complied with. 7 Md. Rep., 27, Rawlings vs. Adams, 4 Do., 304, Greenway vs. Turner.

2nd.  [**11]  The defendants' fourth prayer should also have been granted, because there was no evidence to show any contract between Hess as contractor, and Reid and Taylor as owners, prior to the 28th of March 1851. It was the duty of the plaintiffs to advise themselves of the contract between the parties. It was their business to know when an actual contract was made. 4 Md. Rep., 303, Greenway vs. Turner. The goods furnished prior to the date of this contract, were all furnished to Hess alone, and were not delivered at or near the buildings, but "in Pratt above Green street." The contract in writing was the proof in the case, showing the relation of contractor and owner. 11 Barbour, 13, McDermott vs. Palmer.

3rd. The plaintiffs' prayers ought not to have been granted, They conflicted with these already granted to the defendants, and contained instructions, to sustain which there was no proof. They ought not to recover under the decision in Phillips vs. Duncan, 3 Law Reg., 305, for any goods delivered more than six months prior to the filing of the lien. 1 Sergt. Lien Law, (2 Ed.,) 173, 174, 175. The case in 3 Md. Rep., 170, does not conflict with the decision in Phillips vs. Duncan. In that [**12]  case there was a special contract for all the lumber to be used in the buildings, and the question, whether, where lumber so furnished to several buildings, and used in all of them but one, more than six months before filing the lien, but used in the last within the six months, a lien could be sustained against all? But in this case eighteen of the buildings were owned by one person, and the nineteenth was owned by another, and there was no proof as to the house to which the hardware last furnished was delivered. If it was delivered to Hess' own house within six months, but not to any of the eighteen within that time, could the lien be sustained? And is it not incumbent on the plaintiffs to show, that within sixty days of the date of their notice, hardware had been delivered to some of the eighteen houses owned by Reid and Taylor? There is no such proof in the case. Their last prayer was clearly erroneous, for if one of the houses claimed in the joint lien to be covered by the lien, was owned by a different person than the owners of the eighteen houses, the plaintiffs could not recover under a joint claim, in which they had apportioned their whole bill. The law does not allow a joint [**13]  claim against property owned by separate and distinct parties. 6 Sergt. & Rawle, 521, George vs. Douglas. Sergt. Lien Law, (2 Ed.,) 249, 255. The act of 1838, ch. 205, sec. 12, only allows an apportionment where all the buildings are owned by the same person, and the act of 1845, ch. 287, allowing the docketing of several sci. fas., is a privilege granted to persons who become interested after the lien is laid, in accordance with the 12th section of the act of 1838, ch. 205, and is intended to apply to purchasers from owners.

I. N. Steele for the appellees, argued:

1st. That the notice to the owners offered in evidence by the plaintiffs was sufficient to sustain the lien. By the express terms of the act of 1845, ch. 287, sec. 1, these lien laws are to have the same effect as acts "which confer a general jurisdiction or are remedial in their nature." All that the law demands therefore is a substantial compliance with its requirements. Now, the objections urged against this notice are purely technical. 1st. It is objected first, that the notice was not properly directed and served. The law does not require the notice to be directed to any one. It says, notice shall be given [**14]  to the owners, and if the three owners were standing together, and notice not directed to any one, reached them all, or if there was evidence that it probably did reach them, it is enough. No personal service is required. The question then is, whether giving notice to one joint owner is evidence of notice to both? The word "owner," only is used in the act of 1838, and the word "owners" in the act of 1845, was put in ex abundanti cautela for the purpose of supplying a supposed casus omissus. It means the same thing: the "owner" is the party for whom the house is built, and is the correlative of contractor. 11 Barbour, 13. Now, we insist upon these two propositions. 1st. That where several joint-owners of real estate contract for the building of houses thereon, notice to one is notice to all under our lien laws. 2nd. That service upon one of such joint owners is evidence of notice to all until disproved. The defendants stand here as joint owners and contractors. Where parties have a joint interest an admission of one is the admission of both, and so the knowledge of one is the knowledge of both. 1 Greenlf. on Ev. sec., 174. The same principle applies to all cases where the parties have [**15]  this identity of interest. Notice to the party not sued will bind him who is sued, the contract being joint. 1 Wend., 50, Bartlett vs. Campbell. 15 Maine 9, Holbrook vs. Holbrook. Notice to quit, to one of two joint tenants is notice to both. Notice put in the hands of one of two joint contractors is evidence from which a jury could infer, that it reached the other. 7 East., 553, Doe vs. Watkins. Delivery of notice to a servant is strong presumptive evidence, that it reached the master, and leaving notice at the house is sufficient even where the Legislature has said, that before a party shall be affected, notice shall be given. 4 Term Rep., 465, Jones vs. Marsh. Notice to one of two tenants is sufficient even by parol, where they appear to hold the land jointly. 5 Esp., 197, Doe vs. Crick. We had abundant evidence to go to the jury to show, that the notice was given within the meaning of the act. It was required to be given in writing to avoid frauds and perjuries, and we gave it in writing. In the absence of evidence, that it did not reach the other party the evidence is conclusive that it did. The notice was produced at the trial by the defendants, that is by both of them. Again,  [**16]  the sci. fa. issued twenty-three days before the expiration of the time within which we could have given notice, and this was notice in the highest form, giving all the particulars. 2nd. It is next objected, that it does not state the kind of materials furnished and the amount claimed. The act of Assembly does not require a statement of the kind of materials or of the amount claimed to be in the notice. It says, that within sixty days after "doing the work or furnishing the materials," notice "of the same" shall be given, that is that the work is done or the materials are furnished to the building. It is only when the lien is filed, that the particulars of the claim must be stated. But in this case if Taylor, after receiving this letter, had gone to the clerk's office, he would have found the lien filed containing all the items of our claim. That which puts a party upon inquiry, is notice of that which he would learn upon inquiry. 1 Md. Rep., 403, Price vs. McDonald. But it is not necessary that this particularity should be observed. 6 Binney, 83, Litle vs. Toland. 3rd. Another objection is, that the notice does not state the intention to claim the benefit of the lien. But the lien [**17]  had been already filed, and the letter informs the owner of that fact, and it was of course useless to tell the owner that he intended to do what he had already done. The information that the lien was filed is certainly notice, that the party filing it intended to claim the benefit of it.

2nd. The defendants' fourth prayer asserts, that there is no evidence upon which the plaintiff's can recover for goods furnished prior to the 28th of March 1851. This is always a delicate question for an appellate court, and can only be solved by an examination of the record. The evidence here is the same that is always presented in such cases. Hess bought the materials for the houses, they went into the houses, and the houses were owned by the defendants. This is evidence from which the jury may infer, that the materials were furnished under a verbal contract, and that at the time he purchased them, Hess was the builder, and if so, there was a subsisting contract within the meaning of the decision in Greenway vs. Turner. This removes the objection to our first three prayers that there was no evidence that Hess was contractor. The case of Duncan vs. Phillips in regard to the limitations of six [**18]  months is not law in this State. The contrary is expressly decided in 3 Md. Rep., 176, Okisko Co. vs. Matthews. See also, 16 Missouri, 256, Carson et al. vs. Steamboat Daniel Hillman. 9 Do., 558, Stine vs. Austin. Any other construction requiring a separate lien to be filed in each case within six months would put it in the power of lienors to consume, by the costs of such liens, the entire value of the house.

3rd. Our fourth prayer was asked upon the supposition, that Hess was the owner of the particular house therein referred to. The objection now urged to this prayer was not made in the court below. They never called upon the court to have separate cases docketed, and it is too late now to set up such a defence.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*267]  LE GRAND, C. J., delivered the opinion of this court.
This is a proceeding under the lien law of 1838, chapter 205, and its various supplements. The facts may be thus stated. On the first day of June 1852, a scire facias was issued against nineteen houses erected in Baltimore city, on Portland street, and belonging to Henry S. Taylor and John O. Reid, for [**19]  materials alleged to have been furnished to the said houses, at the instance of Samuel Hess, the contractor. There were two liens laid, one of which was against Hess alone, and was left for record at the clerk's office on the 15th day of May 1852. The second claim for lien against Taylor and others, was filed on the 25th day of May 1852. The record shows, that a contract for the building of the houses was entered into between Taylor, Hess and Reid, on the 28th day of March 1851. The account for materials furnished commenced in January of the same year. On the 15th day of May 1852, S. H. Tagart, counsel of the plaintiffs, gave the following notice to Henry S. Taylor, one of the owners of the houses: "Dear sir:--On Saturday last, I laid a lien on a lot of ground on Portland street, on account of materials furnished in the erection of the houses on said lot, by Messrs. Brown and Poultney. I have learned since, that you had an interest in this property, and I shall not, of course, issue a sci. fa. until I see you upon the subject." This letter was post-marked the 18th of May 1852, and was evidently erroneously dated. It states, that the lien had been laid on the Saturday preceding,  [**20]   when in fact it was laid on the 15th day of May.
On this state of facts the defendant offered four prayers, the 

 [*268]  second and third of which were granted, and the first and fourth rejected. The plaintiff offered several prayers, all of which were granted.
We think the court erred in the rejection of the defendants' first prayer, which, in its nature, was conclusive of the case. We hold the notice to be insufficient under the first section of the act of 1845, chapter 176. That section requires not only that notice should be given of the claim, but also, "of his, her or their (claimants') intention to claim the benefit of the lien." Whatever else may be said of the notice the omission of this compliance with the requirements makes it insufficient.
Although the lien laws are to be construed independently of the rule of the common law which requires all acts in derogation of it to be interpreted strictly, nevertheless the words of the law must be substantially complied with, and in a case like this, where the precise words are furnished by the statute and are wholly omitted, the omission is fatal.
Judgment reversed and procedendo refused. 

16 of 31 DOCUMENTS 

GEORGE W. ZEIGLER vs. PATRICK H. KING, Trustee in insolvency of EDWARD WOOLS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 330; 1856 Md. LEXIS 27 

DECEMBER, 1856, Decided 

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

This appeal was taken from an order of the court below, (KREBS, J.,) setting down for hearing, on a named day, the petition of the appellee, and directing the appellant, its trustee, under a decree for the sale of the mortgaged property, to suspend further proceedings in relation to the sale, and withdraw his advertisement of sale until the further order of the court. The facts of the case are fully stated in the opinion of this court.

The appellee moved to dismiss the appeal for the reason stated in the argument.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

The trustee in insolvency, under the new insolvent act of 1854, ch. 193, has the same exclusive power to sell the whole estate of the insolvent, as under the old system, unless property conveyed in trust before the petition, in the manner allowed by the 13th section of that act, be regarded as an exception.

Where a decree for the sale of mortgaged property, under the act of 1833, ch. 181, has been passed, and after the trustee had advertised the property for sale, the mortgagor applies for the benefit of the insolvent laws, and his trustee in insolvency is appointed and gives bond, the latter, and not the trustee under the decree, is entitled to make the sale.

The fact that the trustee in insolvency filed his petition in the mortgage case, denying the right of the trustee under the decree to sell, and asking that the sale may be stopped, on the ground that he alone had the right to sell, is not a submission to the jurisdiction of the court passing the decree, to such an extent as to estop him from successfully resisting the sale.  

COUNSEL:
Chas. H. Pitts and Geo. H. Williams for the appellant, argued.

1st. As to the motion to dismiss. The order appealed from was an injunction both in form and effect, and no more interlocutory than every injunction is before being made perpetual, and an appeal therefrom is justified by the acts of 1835, ch. 346, secs. 2 and 3, and ch. 380, sec. 3. By these acts the granting of an injunction upon the case made to the court by the bill, was made a matter of appeal without waiting for the settlement of a right. 6 Gill, 97, Wagner vs. Cohen. 7 Md. Rep., 402, Guyton vs. Flack.  [**2]  And it is submitted, that the cases of Welch vs. Davis, 7 Gill, 366, and Cain vs. Warford, 7 Md. Rep., 286, have no relation to a case like the present.

2nd. If then the appellant be entitled to an appeal, it is submitted, there is now no law of this State which gives the sale of property exclusively to a trustee in insolvency. The cases of Alexander vs. Ghiselin, 5 Gill, 180; Carter vs. Dennison, 7 Gill, 170; Waters vs. Dashiell, 1 Md. Rep., 471; Manahan vs. Sammon, 3 Md. Rep., 471, and Eschbach vs. Pitts, 6 Md. Rep., 75; were decided under the act of 1805, ch. 110, sec. 7, which act has been expressly repealed by the act of 1854, ch. 193; and the Legislature, in re-enacting a new system of insolvency, especially excluded the provision of the 7th sec. of the act of 1805, ch. 110, and did not design a continuation but a repeal of the system arising from this section, as is manifest not only from such exclusion, but from the whole tenor of the new law, and especially by its 13th section. But, even under the old system, it has never been decided, that the trustee's power sufficed to set aside a decree in rem of a court of equity; such decree is not only an incumbrance and a lien,  [**3]  but something more. The act of 1785, ch. 72, sec. 3, provides for a foreclosure, or a sale, as a mode of foreclosure, and after a decree for either, the mortgagor can, by no act of his, disturb or avoid the decree. The case of Wilson vs. Turpin, 5 Gill, 59, cited by the appellee, applies to and arose out of the bankrupt law of the United States, and that case also limits the power of the assignee in bankruptcy to cases "where the jurisdiction of the State court had not attached." By analogy, therefore, where the jurisdiction of the circuit court for Baltimore city has first attached, a trustee has no right to interpose.

3rd. It is also submitted, that the petition here shows no case for an injunction. The proper course was, to stand off, or to except to the ratification of the sale when made. By filing the petition in this case, to proceedings which were ex parte, the appellee has made himself a party and submitted to the jurisdiction of the court. Hunter vs. Hatton, 4 Gill, 124.

E. Cummiskey and T. P. Scott, for the appellee, moved to dismiss the appeal, because the order appealed from was only interlocutory and not final; and was not an injunction within the meaning of [**4]  the acts of 1832, ch. 197. 1835, ch. 346 and ch. 380. 7 Gill, 366, Welch vs. Davis. 7 Md. Rep., 286, Cain vs. Warford.

But if the court should be of opinion that the appeal will lie, then the appellee will contend that the order was right and must be affirmed, because the law gives the sale of the property to the trustee in insolvency, and the trustee under the decree could not sell after the application of Wools for the benefit of the insolvent laws. See Wilson vs. Turpin, 5 Gill, 58, and Glenn vs. Boston and Sandwich Glass Co., 7 Md. Rep., 294, in addition to the cases referred to under the second point of the appellant.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*332]  ECCLESTON, J., delivered the opinion of this court.
Inasmuch as we think there was no error in the action of the court below, from which this appeal was taken, we need not decide whether the appellee's motion to dismiss should be sustained or not.
G. W. Zeigler, (the appellant,) on the 2nd of May 1856, under the act of 1833, ch. 181, obtained a decree for the sale of a house and lot in Baltimore, upon a mortgage over-due and unpaid, executed by a certain Edward C.  [**5]  Wools.
In conformity with the decree the property was advertised to be sold on the 28th of May 1856.
On the 10th day of the same month, and after the advertisement, 

 [*333]  Wools applied for the benefit of the insolvent law, and the appellee, (P. H. King,) was appointed his trustee. Thirteen days after, the appellee filed a petition asking the circuit court to restrain its trustee under the decree from proceeding to sell; and the court passed an order setting this petition down for hearing on the 10th of June, and directing its trustee not to sell until further order of the court.
From this order the appeal was taken, the appellant having first filed his answer to the appellee's petition.
Supposing that the order of the court is based upon the doctrine that a trustee in insolvency has the exclusive right to make sale of the insolvent's property, it is insisted, by the appellant's counsel, that such is not now the law in Maryland, whatever it may have been formerly. Their argument is, that the exclusive authority of such trustee to sell, which has been recognized in Alexander vs. Ghiselin, 5 Gill 138, and in other subsequent decisions of like character,  [**6]  was based upon the act of 1805, ch. 110, and more especially the 7th sec. of it: which act has been repealed by that of 1854, ch. 193, creating a new system of insolvency. That the latter act did not re-enact the 7th section of the former law, and by thus excluding its provisions, the Legislature manifested a design, not to continue but to repeal the system arising from that section. Which design, it is said, is not only manifest "from such exclusion, but from the whole tenor of the new law, and expressly by the 13th section thereof."
Admitting that the 7th section of 1805 has not, in terms, been re-enacted, still it does not necessarily follow that the provisions of the late act do not, under the circumstances of this case, confer upon the insolvent's trustee the exclusive right of selling the mortgaged premises.
The 2nd section of the new law provides that a trustee shall be appointed, who is to give bond with surety for the faithful performance of his trust; that a conveyance shall be made to the trustee by the insolvent, of "all his property and estate of every description." And it is evident, from the 1st, 2nd and 15th sections, that upon the approval of the bond, "all the property,  [**7]  of every description, rights and claims of the insolvent," 

 [*334]  whether mentioned in the schedule or not, will vest in the trustee, except the necessary wearing apparel and bedding of the insolvent and his family, and such property as may by law be exempted from execution.
By the 10th section, it is enacted, "That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity."
For the purpose of carrying this provision into effect, where there is specific property, a sale is essentially necessary, for it cannot be supposed the Legislature contemplated a distribution of the property, in kind, among the creditors. And directing the estate to be distributed under the orders of the court, necessarily includes authority in the court to order a sale, by the trustee, who represents the creditors, and holds the property for their use. It was, evidently, the design of the Legislature to have the estate converted into money, and the distribution then made under the orders of the court.
The 15th section shows the Legislature were so careful of the rights of the trustee, even in regard to property not mentioned in the schedule, as [**8]  to prevent his authority and control over it from being interfered with to any further extent than to permit a creditor to secure a lien upon it by fieri facias or attachment, after the petition has been filed.
And although the section was introduced for the express purpose of allowing a creditor to obtain such a lien, the proviso declares, "that nothing in this section shall be construed to impair the right and title of the trustee to such property or claims, as provided by the second section, but shall only operate to give the judgment creditor, who shall discover such property or claims, a priority to be paid out of the proceeds thereof." It cannot well be doubted, that the proviso was designed to prohibit the creditor from having the property sold under his process, but to allow him the privilege of claiming a priority to be paid out of the proceeds of a sale to be made by the trustee. If not so, why say the right and title of the trustee shall not be impaired, and the creditor, notwithstanding he is permitted to levy upon the property, shall only be entitled to a priority when the proceeds are distributed?

 [*335]  The 1st, 2nd, and 15th sections are careful to [**9]  vest the estate, generally, in the trustee, and the latter section cautiously protects his rights from being impaired, even by liens created under its sanction, except so far as to give them preference or priority in payment. In addition to which, whilst the law, in broad terms, provides, "that the estates of insolvents shall be distributed under the orders of the court;" property covered by liens or incumbrances are not excepted, unless property conveyed in trust, before the petition, in the manner allowed by the 13th section, can, notwithstanding such conveyance, be considered, after the petition, as part of the insolvent's estate, subject to a lien or incumbrance, and his trustee as having no authority to make sale of the same, for the purpose of bringing the proceeds into court for distribution. And conceding such to be the case, (without deciding whether it is so or not,) even then, upon the principle that "exceptions tend to prove the rule," such a construction of this section would have the effect of sustaining, instead, as has been suggested, of militating against the general authority of an insolvent's trustee to sell the whole estate, notwithstanding liens [**10]  or incumbrances, with the single exception just referred to.
If the system is not so interpreted as to allow the trustee such a general right of selling, it will be difficult to perceive how the estate can be effectually distributed according to principles of equity, under the orders of the court." And that it should be so done is the design of the law, there cannot be a shade of doubt.
The advantage resulting from our interpretation of the new system, may be very well illustrated by quoting a part of the opinion of the court in deciding the case of Alexander, et al., vs. Ghiselin, et al., 5 Gill 138, under the old law, where it is said: "The leading and general design of all bankrupt and insolvent laws, is, to insure a prompt and complete settlement of all the affairs of the party, and an early distribution amongst the creditors, as nearly in equal proportions as a regard to positive and acknowledged preferences will admit. To facilitate these objects, our law has wisely given to the trustee, to be appointed by the court, the entire management of the estate, 

 [*336]  subject, of course, to the control of the court by whom he is appointed, charging [**11]  him with the duty of paying off liens and incumbrances to which the estate might be subject. His duty requires him to make the earliest disposition and settlement, regarding the interests of all the creditors, the particular lien creditor included, and brings all the claimants before one tribunal, whereas, by allowing sheriffs and mortgagees to participate in the administration of the trust, adverse interests are created, delays endangered, if not insured, and probably different, and possibly conflicting tribunals consulted."
In the case of Hurt vs. Stull, 4 Md. Ch. Dec., 391, a bill was filed for the purpose of enforcing a vendor's lien. A decree directing a sale and appointing a trustee to sell was passed, which, upon appeal, was affirmed. Subsequently to the decree, but before a sale, the vendee applied for the benefit of the insolvent laws, under the old system, and his trustee in insolvency was duly appointed, who, upon the ground that the exclusive right of selling the property was vested in him, applied to the chancellor to stay the execution of the decree. The late learned chancellor, however, dismissed the petition, entertaining the opinion, that the [**12]  trustee, under the decree, had authority to make the sale, notwithstanding the proceedings in insolvency.
With all due respect for the learning of the chancellor, we cannot help thinking, his decision, in that case, is in conflict with the principles announced in Alexander vs. Ghiselin.
The petition of the appellee, asking that the trustee, under the mortgage, might be restrained from selling, the counsel for the appellant contend, is making the appellee a party to the proceedings, and is a submission to the jurisdiction of the circuit court, in the premises, to such an extent as will prevent him from successfully resisting the right of the appellant to sell. In support of which position, reference has been made to Hunter vs. Hatton & Kendrick, 4 Gill 115. But that is a very different case from this. There, it appears from the opinion of the court, that after the first decree, a petition was filed, which "recognized, ratified and confirmed, what had been done," and asking that the purchaser, under the decree, 

 [*337]  might be required to bring the purchase money into court, or that a re-sale of the property might be made. Then it is said: "After such [**13]  a proceeding, and a ratification of the sale, and payment to him of the whole purchase money, and a conveyance of the land by the trustee to the purchaser, does it lie in the mouth of Henry D. Hatton to say, that the whole proceedings are null and void, because, at their incipiency, Mary E. Hatton was not summoned and made to appear, as directed by the act of 1816? By his petition to the court and receipt of the purchase money, he waived all objection to the irregularity of which he now complains, and should be estopped from asserting it, either at law or in equity." In a suit at law Hatton was attempting to treat as void, for irregularity, the decree, which, by his own petition in equity, he had recognized as correct, and under which he had actually received the whole proceeds of a sale made by virtue of the authority of that decree.
In the present case the authority of the court to pass the decree has not been disputed. But the ground taken by the appellee is, that by virtue of the subsequent proceedings in insolvency, the authority of the trustee to sell, under the decree, was superseded, and became vested in him. His petition, certainly, is not an express recognition or ratification, [**14]  nor can it be regarded as an implied acknowledgment of any authority to sell, then existing, except his own. It asserts his right, and denies, in very explicit terms, any such authority on the part of the trustee under the decree. Nor has the appellee taken or received any benefit or advantage based upon or growing out of the proceedings in the mortgage case, which can be construed as a recognition of the appellant's authority to sell. See McCarty vs. Gibson, 5 Grattan's Rep., 307.  Norton vs. Cook, 9 Conn. 314; and Phillips vs. Allan, 8 Barn. & Cres. 477.
The position taken by the appellee has not been overruled, but sustained by the court, temporarily at least. The question now presented, therefore, is, whether the action of the court, not in opposition to, but sustaining the prayer of the petition, should be reversed, when such action is consistent 

 [*338]  with a principle, correct in itself, if considered independently of any supposed applicability of the doctrine of estoppel, arising from the appellant's petition. To which question we feel constrained to answer in the negative, because we do not think the filing of such a petition [**15]  is a sufficient ground for reversing the order appealed from, and therefore it will be affirmed, and the cause remanded without costs.
Order affirmed and cause remanded. 

17 of 31 DOCUMENTS 

CLARA V. WILLIAMS and others, vs. JOS. HOLMES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 281; 1856 Md. LEXIS 22 

DECEMBER, 1856, Decided 

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

This appeal was taken from an order of the court below, directing a sale of the leasehold estate of William Williams, deceased, and refusing to make partition of the same. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Under our testamentary system, the orphans courts have authority to make distribution in kind of personal estate, remaining in the hands of the administrator after payment of debts, consisting of chattels real, and they may make such distribution even where infants are parties interested.

It is the policy of our testamentary system to require distribution to be made in kind, unless a sale is necessary for a satisfactory division, and whether such necessity exists or not, is for the court to decide in view of the circumstances.

The absence of power in the orphans court to appoint a guardian ad litem to infants, would not render nugatory and void the authority to make distribution, expressly given to that tribunal whose duty it is to take special care of the rights of infants in all cases before them involving such rights.

The orphans court has the power, under a liberal construction of the remedial act of 1810, ch. 34, whenever called upon to distribute specific personal property, whether chattels real or personal, if they think proper so to do, to appoint two disinterested persons to make such distribution.

In making such distribution, it is not absolutely necessary in every case that the specific property allotted to each party should be equal in value; the inequality may be remedied by payments in money, the court having ample power to sell a portion of the estate to provide for such payments.

A report of a partition previously made and set aside by the court, may, in a subsequent application for a partition, be used by the witnesses as a written memorandum to refresh their recollections, but not as evidence to show the correctness of the partition therein set forth.  

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

1st. That the orphans court has full power, authority and jurisdiction to divide all the specific property and estate of an intestate, remaining after payment of debts, amongst the distributees. Chattels real are assets, and, by the express requirements of the law, leasehold property must be returned and included in the inventory of the estate. There is no limitation or exception specified, but all the surplus, of whatever it may consist, whether chattels real or personal, must be distributed by the court. This is clear from the provisions of the act of 1798, ch. 101, sub-ch. 15, secs. 1 and 12; sub-ch. 14, sec. 12, and sub-ch. 11, sec. 16. That the orphans court have the power to divide specifically such leasehold property, was clearly decided by Chancellor Bland, in Hewitt's case, 3 Bland, 184. The court [**2]  ought not to decree a sale if distribution can be made without sale. 6 G. & J., 192, Evans vs. Iglehart. 8 G. & J., 244, Alexander vs. Stewart. 2 Md. Rep., 103, Hanson vs. Brawner. And the court may itself make distribution, or appoint persons to do it, this power being given to them under the proper and liberal construction of the act of 1810, ch. 34, sec. 5. It makes no difference that infants are interested in the distribution. The law makes no exception in their favor in this particular. If a guardian ad litem be necessary for such distribution, then, I contend, that the orphans court has the power to appoint one in such a case. But suppose they have no such power, what necessity is there for such a guardian, when the proceedings are before a court whose peculiar office it is to guard and protect the rights and interests of infants and orphans?

2nd. That the leasehold estate in this case is susceptible of advantageous partition amongst the widow and children of the deceased, so as to give a part thereof to each, and, for the purpose of establishing this fact, the plat and proceedings upon the former partition, made under the direction of the court and afterwards set aside,  [**3]  are admissible to show the nature and condition of the property, and to show how it can be divided; or that it was competent for the witnesses to refer to them as a memorandum, to refresh their memories and to illustrate their evidence, considering the circumstances under which such proceedings were had and the plat made.

3rd. That in making distribution of the specific property of the intestate, it is not necessary that the portion allotted to each child should be of the same value, and that the shares may be equalised in value by the addition or substraction of money, and that in this case there was money of the estate in the hands of the administrator to do so. 1 Peere Wms., 447, Clarendon vs. Hornby. 1 Green's Ch. Rep., 345, Brookfield vs. Williams.

John Stewart for the appellees, argued:

1st. That the report of the commissioners and the proceedings in reference to the partition which was set aside, cannot be considered by this court on this appeal:--1st. Because the case set forth in those proceedings has been finally adjudicated in the orphans court, there having been no appeal from the order annulling that partition; and 2nd. Because those proceedings are totally [**4]  irrelevant to the question at issue on the present appeal.

2nd. That the order appealed from in this case was right and proper:--1st. Because the orphans court have not the power by law to divide chattels real between the distributees of a deceased party, their power merely extending to the distribution of "specific articles," named in the inventory. By the act of 1798, ch. 101, sub-ch. 1, sec. 16, power is given to the court to make distribution, in case the surplus in the hands of the administrator shall consist of "specific property, or articles mentioned in the inventory;" and by the act of 1810, ch. 34, sec. 5, power is given to that court, "whenever a distribution of specific articles is to be made," to appoint two disinterested persons to make the same. The question then is, is leasehold property embraced in the phrase "specific articles?" We say not, and that these words are applicable only to articles of personal property mentioned in the inventory. We find this very phrase defined in the 12th sec. of the 12th sub-ch. of the act of 1798, ch. 101, where it is said: "In case the personal property of a ward shall consist of specific articles, such as slaves, working beasts,  [**5]  animals of any kind, stock, furniture, plate, books, and so forth." Thus we have in the very same act a clear definition and explanation of the terms "specific articles," showing that they embrace only articles of personal property, such as are specified above, and that they do not include chattels real. See also on this subject the Acts of 1831, ch. 311, sec. 1; 1835, ch. 380, sec. 9; 1816, ch. 203, sec. 2. 6 H. & J., 67, Scott vs. Burch. 2 H. & G., 120, Brodess vs. Thompson. 2 Bland, 25, Crapster vs. Griffith. 6 G. & J., 199, Evans vs. Iglehart. 2nd. Because the orphans court has not the power to appoint a guardian ad litem, and that the guardian of the infants had no right to act for them in the premises. This court, by the 20th sec. of the 15th sub-ch. of the act of 1798, ch. 101, is forbidden to exercise any jurisdiction not expressly given by that act under pretext of incidental power or constructive authority. They cannot therefore appoint a guardian ad litem for the infants, and without such a guardian the division of leasehold estate cannot be made. 3rd. Because the orphans court have the right to distribute all the personal estate of the deceased, and in case of chattels [**6]  real, where infants are among the parties to the distribution, the only mode of distribution is by sale and division of the proceeds.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*284]  ECCLESTON, J., delivered the opinion of this court.
At the instance of the widow and some of the children of William Williams, deceased, the orphans court of Baltimore city appointed three persons to re-appraise and distribute the personal estate of the deceased, among the parties entitled to the same. On the 30th of August 1855, the persons so appointed made a report to the court, that the leasehold property, 

 [*285]  (now in controversy,) was capable of a division which would operate equally among the representatives of the deceased, and that a division thereof had been made in the manner set forth in the report.
On the 3rd of September 1855, after the division or distribution had been reported, some of the distributees filed a petition, praying that the order of the court under which the division had been made might be revoked, and that the reappraisement and division, or partition, should be pronounced by the court null and void. To this [**7]  petition Clara V. Williams and William H. Williams, the administrators, filed an answer; and on the 24th of September 1855, the court granted the prayer of the petition, by revoking their former order, and pronouncing the re-appraisement and partition null and void. From which decision no appeal has been taken, and both parties concede that it is not now before us for revision.
On the 25th of the same month, the present appellants filed a petition, praying the court to appoint a day for making a distribution of the estate, and, by summons, to call upon the parties in interest to appear, and that the court would distribute the estate.
Three days afterwards a petition was filed by Joseph Holmes and Mary E. Holmes, his wife, Catharine Schaum, Alexander Williams, and Matilda Williams, by her next friend, Joseph Holmes, in which they pray that the chattels real belonging to the estate may be sold, and the proceeds distributed.
The children of the deceased are: William H. Williams, (the appellant,) Mary E. Holmes, Catharine A. Schaum, and Alexander, Caroline H., Matilda, Sarah, Mary Ann, Clara V., and Amelia E., Williams; the five last named being minors. Clara V. Williams, (the appellant,  [**8]  ) is the widow of the deceased, and it appears she has been appointed guardian to three of the children, but their names are not given.
On the 2nd of October, the petition of the appellants was answered, by Joseph Holmes and Mary E., his wife, Catharine A. Schaum, Alexander Williams and Caroline Williams. They allege that all the personal estate had been sold except chattels real, which they say the orphans court have no right to divide.

 [*286]  On motion of the counsel for the administrators, their petition for a distribution, and that of Joseph Holmes and others, for a sale, the court ordered to be consolidated, and thereafter to be taken and considered as one case.
Evidence was offered for the purpose of showing that the leasehold property would admit of partition, without injury to the parties entitled; and proof of a contrary character was also given.
On the 5th of November 1855, the court passed a decree directing the leasehold property to be sold. This they did, as the language of the decree clearly shows, because they were of opinion that they had "no power to divide specifically, or by partition, leasehold estate, and "that an infant could not, either by himself or [**9]  through a guardian, give consent to such division."
From this decree the present appeal is taken, and requires us to decide whether under our testamentary laws, without a sale, the orphans courts have authority to make distribution of leasehold property remaining in the hands of administrators after the debts of the intestate have been paid.
By the act of 1798, ch. 101, sub-ch. 7, it is provided, that the inventory of a deceased's estate, which is required to be taken and returned, shall include leases for years, and that they "shall be considered as assets in the hands of an executor or administrator."
The 11th sub-ch. commences, by directing that when all the debts of an intestate have been paid, or a sufficient amount of the assets allowed to be retained to pay them, "the administrator shall proceed to make distribution of the surplus," among the parties entitled to the same under the provisions of that chapter, the 16th, and concluding, section of which provides, that "in case the surplus remaining in the administrator's hands after payment of all just debts exhibited and proved, or notified and not barred, or after retaining for the same, shall consist of specific property, [**10]  or articles mentioned in the inventory or inventories, the administrator, if he cannot satisfy the parties, may apply to the court to make the distribution, and the court may appoint a day for making distribution, 

 [*287]  and, by summons, call upon the said parties to appear, and the court may, at the appointed time, proceed to distribute, but if a majority in point of value shall neglect to appear, or appearing shall object to the distribution of the articles, or if the court shall deem a sale of the said articles, or any part of them, more advantageous, a sale shall be directed accordingly, and the rules hereinbefore laid down, relative to a sale by order of the said court, shall be observed."
The 12th sec. of sub-ch. 14, authorises an executor or administrator to appoint a meeting of creditors, or of persons entitled to distributive shares or legacies, or a residue, on some day by the court approved, and "payment or distribution may be there made, under the court's direction and control."
In the 1st section of sub-ch. 14, among other matters declared to be within the jurisdiction of the orphans court, are included, "superintending the distribution of the estates of intestates, [**11]  securing the rights of orphans and legatees, and administering justice in all matters relative to the affairs of deceased persons, according to law."
In Hewitt's case, 3 Bland's Rep., 184, it appears Eli Hewitt died intestate, leaving his three sons, Eli, Rezin and Jacob, his heirs at law, and that at his decease he was seized of certain real estate in fee, and possessed some chattels real; which the bill alleged to be incapable of division, and prayed that they might be sold for the purpose of dividing the proceeds. The bill was filed by Eli, making his two brothers defendants. By a commission from chancery Jacob had been found a lunatic, and placed in the custody of Rezin as his trustee. Because the trustee was personally interested in the controversy, the chancellor considered it necessary to appoint a disinterested, capable person, as guardian to the lunatic, to answer for him. And such guardian was appointed.
The special and distinctly expressed object of the bill, as understood by Chancellor Bland, was "to obtain a partition of an intestate's estate among his heirs."
The chancellor did not doubt his authority to make partition of real estate claimed either by descent,  [**12]  or by purchase; nor did he doubt the power of his court to make partition of 

 [*288]  any personal property among its several owners: nevertheless he dismissed the bill so far as related to the chattels real, and referred the parties "to the orphans court to obtain the proper distribution." Why he did so may be seen by the following quotation from his opinion: "But this bill does not allege that these parties, or any of them, are at present in actual possession of the chattels real of which the intestate died possessed; on the contrary, it has been verbally admitted, that these chattels real passed into the hands of his administrator, and yet remain to be accounted for by him. The administrator of the intestate has not been made a party to this suit; nor could he, with propriety, have been made a party solely for the purpose of obtaining a partition of any of the personal estate in his hands; because the power to make a distribution of the surplus of the personal estate remaining in the hands of the administrator, has been conferred upon the orphans court, with which this court should not interfere, except on account of some special circumstances to which the powers of the orphans [**13]  court may not be altogether adequate. Nothing of the sort has been intimated in this case."
From this decision it was evidently the opinion of the learned chancellor, that where the application is to make partition or distribution of leasehold property, belonging to the estate of an intestate, remaining, as a surplus, in the hands of the administrator, the application should be made to the orphans court; which tribunal has the appropriate jurisdiction over the subject, with which the chancery court will not interfere; except on account of special circumstances, in regard to which the powers of the orphans court may not be fully adequate.
That one of the parties is a lunatic, requiring the appointment of a guardian ad litem, is not one of those special circumstances alluded to, as rendering the power of the orphans court inadequate; because, in the case before the chancellor, Jacob Hewitt, one of the defendants, was a lunatic.
In the case of a lunatic defendant, when his trustee is a party interested in the suit or proceeding, a guardian ad litem for the lunatic, is as necessary, according to the usual practice in the courts, as such a guardian would be for an infant. 

 [*289]   [**14]  And if Jacob Hewitt, instead of being a lunatic had been an infant, we cannot suppose that would have changed the decision of the chancellor, as to the appropriate tribunal for making distribution of the chattels real.
Reference has been made to the subject of a guardian ad litem, because the counsel for the appellees insist that the orphans court have no power to appoint such a guardian; and for that reason, where infants are concerned, the court cannot make partition of leasehold estate. Express authority to make such an appointment, it is said, is no where given, and by the 20th sec. of sub-ch. 15, of the act of 1798, the court cannot, "under pretext of incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given" by that act, or some other law.
Whilst, however, it is said the absence of power to appoint a guardian ad litem, will prevent the court from making partition of leasehold property, specifically, yet it is not only conceded by the appellees, but earnestly insisted upon, that the court even where infants are concerned, may direct a sale of such property and distribute the proceeds, and may divide or distribute, in kind, any [**15]  other species of personal estate. But surely there is as much necessity for such guardian to protect the interests of minors, in the latter class of cases as in the former. And if without such guardians, in the latter the court may proceed as the appellees contend, why may they not do so likewise in the former? The testamentary laws contain no provisions which create any distinction between chattels real and other personal property requiring the appointment of guardians ad litem in proceedings relating to the one and not to the other.
Viewing Chancellor Bland's decision in connection with the extracts we have made from the act of 1798, we think there can be no doubt that after the debts of an intestate have been paid, the orphans court have authority to make distribution in kind of the surplus of personal estate remaining in the hands of the administrator, consisting of chattels real, as fully as they have to make such distribution of other chattels or personal property. And their authority thus to distribute is 

 [*290]  no where limited or restricted, because infants are parties interested.
Not only has the legislature conferred upon the court power to divide the surplus [**16]  of the estate specifically, but, according to the doctrine announced in Evans vs. Iglehart, 6 G. & J. 171, it is the policy of our system to require such a division to be made, instead of converting the property into money; unless a sale is necessary for making a satisfactory distribution. Whether such necessity exists or not, is, of course, for the court to decide in view of the circumstances.
Where such power is expressly given, and that without limitation or restriction on account of infancy, should it be conceded, (without so deciding,) that the orphans court cannot appoint a guardian ad litem, still, the absence of such power of appointment will not render nugatory and void, the authority to make distribution expressly given to a tribunal, the name of which, and the nature and character of its jurisdiction, clearly indicating that the judges thereof are required to guard and to take special care of the rights of infants, in all cases coming before them involving such rights. The quotation taken from the 1st section of sub-ch. 14, shows, that "superintending the distribution of the estates of intestates," and "securing the rights of orphans," are duties [**17]  assigned to the orphans court.
It appears, that in the present case, a majority of the parties interested, in point of value, were before the court, and that a majority in value did not object to a partition. Under such circumstances the application of the appellants was refused by the court; not, however, because they deemed a sale more advantageous, but they directed a sale for the purpose of distributing the proceeds, in consequence of believing they had "no power to divide specifically, or by partition, leasehold estate." In making such a decision we think the court committed an error.
In the course of the argument it was made a question, whether the report of the 30th of August 1855, of the partition, made by the persons appointed for that purpose, in the proceeding subsequently annulled, could be used as evidence before the court below, in the present case. On this subject we 

 [*291]  deem it sufficient to say, that to the extent to which written memoranda, made by witnesses, may be used by them for the purpose of refreshing their memories, so far was it proper to use the instrument in dispute, so as to enable the witnesses who made it, to refresh their recollections. But [**18]  it was not evidence before the court to show the correctness of the partition therein set forth.
In relation to this branch of the case it is deemed proper to remark, that, in our opinion, as the act of 1810, ch. 34, is a remedial and very beneficial statute, it is perfectly proper, under the rule requiring a liberal construction of such statutes, to hold, that whenever the orphans courts are called upon to make distribution of specific personal property, whether of chattels real or personal, this act confers upon the courts, power, if they think proper so to do, to appoint two disinterested persons, not in any way related to the parties concerned, to make such distribution among the persons entitled, according to the provisions of the law.
In consequence of a portion of the argument, we will say, that in making partition by the orphans court, it is not absolutely necessary, in every case, that the portion of specific property, allotted to each party, should be equal in value. The inequality may be remedied by payment of the difference in money; the court having ample power to sell a portion of the estate so as to provide for such payments when necessary.
The decree will be reversed [**19]  and the cause remanded for further proceedings. The costs are to be paid out of the estate.
Decree reversed and cause remanded. 

18 of 31 DOCUMENTS 

JOHN J. HECKART and ROB'T R. VANDIVER, vs. LEMUEL ROBERTS, Lottery Commissioner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 41; 1856 Md. LEXIS 5 

JUNE, 1856, Decided 

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

This was a petition by the appellants for a mandamus, to compel the State lottery commissioner to pay to each of the petitioners $ 425.01, the balance alleged to be due upon a lottery grant, and decreed to be paid to them by decree of Baltimore county court, as a court of equity, the decree giving one-fourth of the sum ordered to be paid, to each of the petitioners. The court (LEE, J.) refused the application, and the petitioners appealed.

The argument of the case before LE GRAND, C. J., ECCLESTON and TUCK, J., was stopped by the court, who affirmed the order appealed from.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Two parties having separate claims against a State officer cannot unite in an application for a mandamus to compel payment.  

JUDGES:
LE GRAND, C. J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*42]  LE GRAND, C. J., delivered the opinion of this court.
The decision appealed from in this case must be affirmed, if, for no other reason, than that too many persons have joined in the application for the writ. Their claims are alleged to be separate, and being such they cannot be united.  Smith, et al., vs. Erb, et al., 4 Gill, 437.
Judgment affirmed. 

19 of 31 DOCUMENTS 

ISAAC SCAGGS vs. BALTIMORE AND WASHINGTON RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 268; 1856 Md. LEXIS 73 

DECEMBER, 1856, Decided 

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

Trespass on the case, brought by the appellant against the appellee, to recover the value of a negro slave killed by the defendant's cars, through the alleged negligence, mismanagement and carelessness of its agent, the conductor. Plea, non cul.

1st Exception. The plaintiff proved the killing, and the defendant, to prove that the accident was not the consequence of its negligence or that of its agents, offered to prove by Owen Humphreys, the conductor of the train, William Gallaway, the engineer, and Benjamin Dove, the brakesman, all in the employ of the company at the time, that all care, precaution and diligence was used to avoid the collision, and that it was not the result of carelessness or negligence, having first exhibited and filed the following release, purporting to be signed by the president of the company and attested by its corporate seal:

"Know all men by these presents, that the Baltimore & Ohio Rail Road Company have released, and by these presents do release," the parties above named "from all claim which the said company may have against them, or any of them, growing in any manner out of an accident [**2]  whereby the negro slave of Isaac Scaggs was killed by the train in their charge," &c.

The plaintiff objected to the competency of these witnesses, since the act of 1846, ch. 326, and the efficiency of the release to render them competent, but the court, (CRAIN, J.,) overruled the objection, and permitted the witnesses to give the proposed testimony, and to this ruling the plaintiff excepted.

2nd Exception. It was then agreed that the testimony of Benson, a material witness named in the affidavit of the plaintiff, "shall be taken as set forth in the said affidavit as if he was now present." In this affidavit the plaintiff swore that he expected to prove by said Benson that he was a passenger in the cars at the time of the killing, which occurred at a road crossing the rail road on the plaintiff's farm; that the slave might have been seen about three-fourths of a mile by the engineer of the cars, by the use of common, ordinary diligence; that no attempt was made to stop the speed of the cars; that no whistle was blown within three-fourths of a mile before the crossing to forewarn persons to leave the track; and that in the opinion of the witness the slave's life might have [**3]  been saved had the defendant's agents used reasonable, ordinary diligence. The defendant then prayed the court to instruct the jury, that the opinion of the witness, Benson, named in this affidavit, was no evidence to the jury, and that the jury should disregard this opinion in the formation of their verdict, which instruction the court gave. To this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

By the act of 1837, ch. 309, rail road companies are made responsible for injuries to woods and fields occasioned by fire from their engines, and by the act of 1838, ch. 244, the same remedy is applied to injuries to "any stock as cattle, horses, sheep, hogs, et cetera." The act of 1841, ch. 266, a supplement to both the previous acts, applies all the remedies given by either "to every description of property and estate, whether real or personal." The act of 1846, ch. 346, which is a supplement to that of 1838, only, and does not refer, in any manner, to those of 1841 or 1837, provides, "that the owner of any horse, cow, mule, hog or sheep, et cetera, killed or injured by the engines or cars," shall recover full damages "for such killing or injury," and that "it shall not be competent for" the company, "in any trial had in pursuance of this act, to adduce the evidence" of the conductor, agent or other person conducting the cars which may do the injury, or that of any agent or employee who may be responsible to the company for negligence, "by which any stock may be killed or injured as contemplated by this act." HELD:

That the new rule of evidence prescribed by the act of 1846, does not apply to cases of killing or injuring negro slaves, it not being the design of the Legislature to include such property in the terms "stock" and "et cetera" as used in that act; this act is confined to the particular description of property mentioned in it.

In construing statutes the words of the act are first to be resorted to, and if these are plain in their import they ought to be followed.

General words are sometimes used by way of example, and by construction lesser cases are included, but the words used are sometimes restrictive and exclude things not mentioned, and such is the construction of the words in the act of 1846, ch. 346.

In order to extend a statute by equitable construction beyond its letter, it must be collected from the act that the wrong sought to be redressed was one of the considerations for passing the act, otherwise it is a casus omissus which a court of law cannot supply.

Where an act denies to one class of suitors a remedy or defence which others enjoy, it will not be extended by equitable construction to cases not specified in it, unless the court is satisfied the case is within the mischief or occasion that was in the minds of the Legislature at the time of its passage.

A release under the corporate seal and purporting to be signed by the president of a corporation, and exhibited by them in court as their act, would be binding upon the company in any suit against the parties to whom it was given; they would not be heard to dispute its validity.

A release "from all claim" which the company "may have" against the parties to whom it was given, "growing in any manner out of an accident whereby the negro slave of the" plaintiff "was killed," and about which the suit was pending, is in proper form and renders the parties released competent witnesses.

An agreement that the evidence of a witness should be taken as set forth in the affidavit "as if he was present," gives to his statements the same effect as if offered orally, and any thing which could then have been objected to is equally inadmissible when presented as part of the affidavit.

A statement in such an affidavit that "in the opinion of the witness the slave's life might have been saved had the defendant's agents used reasonable, ordinary diligence, is inadmissible, being merely the witness' opinions. 

COUNSEL:
John M. S. Causin for the appellant, argued:

1st. That the 2nd sec. of the act of 1846, ch. 346, which makes the conductors, engineers and other employees of the company incompetent to testify in such a case as the present, is a constitutional exercise of legislative power. The only restrictions upon the exercise of legislative power, so far as the States are concerned, are the prohibitions contained in the State constitutions. If any act of Assembly be in its nature and essence a law, and not the exercise of judicial or executive functions, and if it be not in violation of the Federal constitution, and is not prohibited by the State constitution, there is no power in the courts to declare it unconstitutional. To say [**4]  that a law not thus prohibited is void, because it violates the spirit of our institutions or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust, would be assuming a right to change the constitution, to supply what judges might conceive to be its defects, to fill up every casus omissus, and to interpolate into it whatever, in the opinion of the judges, ought to have been put there by its framers. 21 Penn. State Rep., 161, Sharpless vs. Mayor of Philadelphia. 10 Watts, 66, Harvey vs. Thomas. 6 Cranch., 87, Fletcher vs. Peck. 3 Dallas, 386, Calder vs. Bull. 7 Gill, 325, Day vs. The State. 1 H. & J., 246, Whittington vs. Polk. 3 H. & McH., 554, Campbell vs. Morris. 1 G. & J., 463, Crane vs. Meginnis. 1 Baldwin's C. C. Rep., 74, Bennet vs. Boggs. 9 Gill, 305, Baugher vs. Nelson. 3 H. & J., 323, Partridge vs. Dorsey. 1 Kent's Com., 448, 450. 9 G. & J., 365, Regents, &c., vs. Williams. 2 Md. Rep., 452, Wright vs. Wright. The entire scope of evidence is peculiarly within the province of the legislative power. Declaration of Rights, articles 3 & 20. 7 Md. Rep., 86, Gibbs vs. Gale, et al. Dunlop's [**5]  Statutes, 955. Acts of 1838, ch. 191, secs. 12, 13, and ch. 244. 7 Md. Rep., 427, Broadbent vs. The State. 3 How., 206, 207, Taylor vs. The United States. It is not true that this act of 1846 tends to render the parties excluded as witnesses, infamous. The act legislates against a class not individuals. Infidels are excluded from testifying by the common law. The constitution prescribes tests. Parties are excluded. Interest disqualifies, and there are other interests besides pecuniary ones equally liable to affect the truth of evidence, as the relation of husband and wife, &c.

2nd. That being designed for public protection, every fair construction to give the act efficacy should be applied by the courts. 2 H. & J., 167, Beall vs. Harwood. 4 G. & J., 1, Canal Co. vs. Rail Road Co. It is urged on the other side that this act does not apply to negro slaves. But the act of 1838, ch. 244, to which the act of 1846 is a supplement, applies to all kinds of stock, and the new rule of evidence is applied to "any trial had in pursuance of the" latter act. We insist, 1st, that the word "stock," and the words "et cetera," used in the act of 1846, include negroes. But, 2nd, if this be not so,  [**6]  that all difficulty is removed by the act of 1841, ch. 266, which provides, that all the remedies given by the acts of 1837, ch. 309, and 1838, ch. 244, "shall apply and extend to every description of property and estate, whether real or personal." All these acts, together with the subsequent law of 1846, are in pari materia, and must, therefore, be construed together. 2 G. & J., 365, State vs. Boyd. 66 Law Lib., 281. 9 G. & J., 483, Tide Water Canal Co. vs. Archer. 7 Gill, 325, Day vs. The State. 3 Md. Rep., 60, Ranoul vs. Griffie. 9 Law Lib., 696.

3rd. That the release could not render the parties competent as witnesses. If it could, then the act of 1846 was futile, because parties similarly implicated were by the common law incompetent without a release. 1 Camp., 251, Miller vs. Falconer. 3 Cow. Phillips on Ev., 105. So to construe the act would convict the Legislature of an absurdity, in designing additional protection to the public against the recklessness of rail road agents; for by such construction it affords none. But upon other grounds the release was not legally sufficient to render the witnesses competent:--1st. It was not proven to have been executed by competent [**7]  authority. 66 Law Lib., 182. 3 Md. Rep., 311, Susq. Bridge & Bank Co. vs. General Ins. Co. 2nd. It did not release the contingent liability of the agents in the particular case. 15 Mass., 110, Gibson vs. Gibson. 7 Do., 155, Hastings vs. Dickinson. 4 Pick., 368, Francis vs. Boston & Roxbury Mill Corp. 1 Starkie on Ev., 125. Again, the witnesses named in the release were incompetent to testify non obstante the release, because, in addition to civil responsibility, they were liable to indictment for the result of their carelessness, and the verdict in the civil case might be used on the criminal trial. 4 Phillips on Ev., 23, 47, 48.

4th. That the ruling of the court below in the second exception was erroneous:--1st. Because no right of exception to the admissibility of the rejected evidence was reserved in the agreement. 7 Md. Rep., 87, Gibbs vs. Gale, et al. 2nd. The statements of Benson were not mere opinions, but being based on facts recited, were knowledge. 7 Gill, 27, Brooke vs. Townshend.

Thomas G. Pratt for the appellee, argued:

1st. That the act of 1846, properly construed, only provides that the agents of the rail road company are to be deemed interested in all [**8]  suits against the company, for losses occasioned by their cars, and therefore that they shall, because of such interest, be held as incompetent witnesses for the company. This is manifest from the words, "and responsible as such to said rail road company, for negligence," &c., used in the 2nd section of the act. But it is insisted, that the agents of the company having no interest in the event of the suit, because of the release of the company to them, were competent witnesses.

2nd. But if the true construction of this act would make the agents of the company incompetent witnesses, although not interested in the event of the suit, then we insist, that as it is a law imposing penalties upon the company and its agents, it must be construed strictly, and upon such construction, that it does not apply at all to negro slaves. This law provides, that the "owner of any horse, cow, mule, hog or sheep, &c., killed or injured by the engines or cars," shall recover, &c., and that it shall not be competent for the company, "in any trial had in pursuance of this act, to adduce the evidence" of their agents. This language will not be construed, to apply to any other injuries than those specified [**9]  in the act, and consequently it cannot apply to any injury to slaves. The act of 1841, ch. 266, only applies the remedies in the acts of 1837 and 1838, to all kinds of property, but has no application to the act of 1846, passed subsequently. Again, this latter act of 1846, makes no reference whatever to the act of 1841, it is and purports to be only a supplement to that of 1838.

3rd. That this act, if construed as the appellant insists, is unconstitutional, for various reasons:--1st. Every white citizen of Maryland, of sufficient intelligence and religious instruction to understand and appreciate the obligation of an oath, and who is not interested in the event of the suit, has the constitutional right to testify in regard to any matter within his knowledge, pending before the courts of the State, (Bill of Rights, Art. 33,) and, consequently, any construction of the act of 1846, which would make these witnesses incompetent, would violate their constitutional rights. 2nd. Every defendant in Maryland has a right to have to testify for him, any white citizen who has a knowledge of the facts and no interest in the event of the suit, and consequently, the act of 1846, as construed [**10]  by the appellant, would deprive the defendants here of their constitutional right to have the testimony of these witnesses. 3rd. The act of 1838, ch. 244, assumes, that all losses occasioned by the company have occurred through their negligence, and by the construction proposed to be given to the act of 1846, the company is deprived of the testimony of the only witnesses, who, by possibility, could prove the use of due diligence on their part; and therefore, that the act of 1846 is unconstitutional, because it deprives these defendants of a fair and impartial trial in the courts of justice of the State. Smith's Com. on the Const., 272, 273, 281, 284, 285, 286. 2 Pet., 657, Wilkinson vs. Leland. 9 Cranch., 43, Terrett vs. Taylor. 1 Bay., 252, Bowman vs. Middleton.

4th. That the release from the rail road company to the witnesses was in proper form, and did effectually relinquish all claim, past, present or future, of the company, against the witnesses, growing out of the death of the negro of which they were to testify.

5th. That the true construction of the agreement, which forms the subject of the second exception, is, that the affidavit of the witness should be read, to [**11]  have the same effect, and subject to the same objections, as if he were present. Consequently the defendants reserved the right to object to any portion of the testimony which was legally inadmissible, and the opinion of the witness being inadmissible, was properly excluded.  

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

OPINIONBY:
TUCK 

OPINION:

 [*275]  TUCK, J., delivered the opinion of this court.
Under the first exception the counsel have discussed the applicability of the act of 1846, ch. 346, to cases instituted for the recovery of damages for injuries to negro property, the validity of that act, and the effect of the defendants' release to the witnesses whose testimony was objected to, it being contended, on the part of the appellant, that the act is valid, and applies a rule of evidence to the case under consideration, for the benefit of the plaintiff below, from which he could not be deprived by the release offered in evidence.
By the act of 1838, ch. 244, rail road companies in this State are made responsible "for injuries resulting in death, or otherwise, inflicted upon any stock, as cattle, horses, sheep, hogs, &c., or by fire, occasioned by their [**12]  engines or carriages, upon any of their roads," &c., &c. The act of 1837, ch. 309, had given a remedy for injuries to woods, fields or other property, burned or injured by fire or sparks from rail road engines. The act of 1841, ch. 266, which is entitled a supplement to both these acts, provides that all the remedies which are given by them, or by either of them, "shall apply and extend to every description of property and estate, whether 

 [*276]  real or personal, and to all manner of title and interest in or to any property or estate, whether legal or equitable, and that the said acts shall be so construed by all the courts of this State, in all cases depending or to be instituted to recover damages under the said acts of Assembly or either of them." The act of 1846, ch. 346, is a supplement to that of 1838, ch. 244, not referring in any manner to those of 1837 and 1841. The first section provides, "that the owner of any horse, cow, mule, hog or sheep, &c., killed or injured by the engines or cars of either of the rail road companies of this State, shall recover full damages and costs for such killing or injury." The second section declares: "That it shall be competent for said [**13]  rail road company to prove, by disinterested witnesses, that the damage or injury sustained was the result of unavoidable accident, and if satisfactory evidence be adduced before the tribunal trying the issue, said rail road company shall not be liable; but it shall not be competent for said rail road company in any trial had in pursuance of this act, to adduce the evidence of any conductor, agent, or other person in the employ of said rail road company, who may be conducting the engine or driving the cars which may do the killing or injury as aforesaid, or the evidence of any agent or employer (employee) who may be acting in the capacity of agent, and responsible as such to said rail road company, for negligence, carelessness or wilfulness, by which any stock may be killed or injured as contemplated by this act."
It will be observed that neither of these acts prescribe a rule of evidence for the support of the actions which they authorize, except the last. But it is contended, on the part of the appellant, that being in pari materia, they must be considered as parts of one remedial act, designed to suppress the same mischief as to every description of property, and that, therefore,  [**14]  the rule of exclusion directed against the officers and agents of the company, when offered as witnesses where stock is destroyed, is equally applicable in this case, the subject of the injury being within the general terms of the act of 1841.
The general rules for the interpretation of statutes recognized in the cases of State vs. Boyd, 2 G. & J. 365, and 

 [*277]  Canal Co. vs. Rail Road Co., 4 G. & J. 152, are not to be denied; but they are not the only principles applicable to cases like the present. And while it is conceded, that remedial acts are to receive a liberal construction for the advancement of the remedy, and to prevent the mischiefs within the intent and meaning of the acts, it must be remembered that this is but a secondary rule, and not always to be observed. Dwarris on Statutes, 735. "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:" for the purpose of giving effect to the intent of the law makers, 2 G. & J. 374. But here the point is, to ascertain whether the Legislature did intend [**15]  that the rule of evidence, in this act of 1846, should be extended to actions for other kinds of property than those mentioned.
The words of the act are first to be resorted to, and if these are plain in their import they ought to be followed. The most eminent judges have expressed regret, that this cardinal rule has been so often departed from, and statutes construed to embrace cases not within the letter--rather presuming what the Legislature meant, than gathering their intent from the language of the law, and this has been done generally, in order that a particular grievance might not go unredressed, when the law makers had not made special provision for such cases; Lord Tenterden said in 6 B. & C. 475, "there is always danger in giving effect to what is called the equity of a statute; it is much safer and better to rely on and abide by the plain words, although the Legislature might have provided for other cases, had their attention been directed to them." This caution is particularly to be observed, where that construction is opposed by other rules. General words are sometimes used by way of example, and by construction, lesser cases are included. But, on [**16]  the contrary, the words employed are sometimes restrictive, and exclude things not mentioned, as in Rex vs. Cunningham, 5 East., 478, where the statute of 43 Elizabeth, ch. 2, in relation to coal mines, was held not to include tin, lead and copper mines. The presumption is, that the Legislature will express its meaning in language to be understood, and the reason 

 [*278]  why acts are extended beyond the letter is, that all cases cannot be foreseen and provided for in terms; but it must be within the same mischief or cause of making the act. Co. Litt., 24, sec. 2. We are not to enlarge statutes, so as to embrace every possible wrong that the Legislature might have included in the same act; but it must be collected from the act that the wrong sought to be redressed, was one of the considerations for passing the act. If this conclusion cannot be arrived at, it is a casus omissus, which a court of law cannot supply. 5 Com. Dig., Parliament R., 13.  Jones vs. Smart, 1 Term Rep. 52.
The act of 1846, like that of 1838, enumerates particular kinds of property, and covers every description of stock. And although the act of 1841, enlarges [**17]  the application of the act of 1838, by embracing all property, it is remarkable that the Legislature, with these acts before them, when the last was passed, if slaves were in their contemplation, should have in terms confined it to a particular description of property, and, in prescribing a rule of evidence to give effect to the remedy, have omitted all mention of the most valuable of personal estate, and left its owners to the uncertain equitable construction of that portion of the act, which is said to afford the only substantial protection to the master. The case appears to be within the doctrine of Rex vs. Cunningham. The words must be taken in their ordinary acceptation. Dwarris, 702. The terms "stock" and "et cetera," employed in this act, certainly embrace other things not enumerated, but we cannot discover that they were designed to include negroes. Besides the special mention of property, in the first section, the second confines the incompetency of the persons designated, to cases of liability on account of negligence, by which any stock may be killed or injured. And we think it as reasonable to suppose that negroes were intentionally omitted, because of their [**18]  greater capacity to avoid such dangers than stock, as that they were designed to be comprehended by the general terms employed.
We are not now inquiring whether the second section of the act of 1846 is valid or not, but, merely, in what cases the 

 [*279]  new rule of evidence it prescribes was designed by the Legislature to operate. If this were a strictly penal statute the company certainly would not be amenable to its provisions. For a case in point, see Dwarris, 737.  3 Bingham 580. But though not of that character, these acts are special in their operation, imputing culpable negligence to the agents of the companies, for which they are made responsible, unless they can establish their own innocence, and, with the burden of proof thus cast upon them, the act of 1846 takes away the common law right to have their cases tried upon principles common to other suitors in the same court. The charter of the appellee secures the capacity to sue and be sued, subject of course, to subsequent legislation for the general administration of justice. When, therefore, an act of Assembly denies to one class of suitors a remedy or defence which others enjoy, and the question [**19]  is, as to the application of its provisions to cases not specified, and that depends on the doctrines of equitable construction in view of the intent of the lawmakers, the court should be satisfied, before extending its operation beyond the language employed, that the case is within the mischief or occasion that was in the minds of the Legislature at the time of its passage. For we are not to presume, that the Legislature design to make innovations upon the common law, or to take away the company's rights by implication. 3 Kent 464.  Warner vs. Fowler, 8 Md. 25.
We are not prepared to say, as contended in argument, that the safety of passengers in the cars must be regarded in the application of the remedy provided by these acts. That it was a proper subject of legislative concern none will deny, but we look in vain for any such motive for passing these laws. The sole object seems to have been the protection of property on and along the roads. None can sue, under their provisions, except those who may suffer by the destruction of property. It is manifest that, in an action by a passenger, for personal injuries sustained on the road, the rule of evidence prescribed [**20]  in the act of 1846, would not avail him, and while the owner of stock injured by the cars on the same occasion, might recover, by excluding certain witnesses, a passenger 

 [*280]  might fail in his suit, by the application of the common law rule; and the anomaly would occur of two suits in the same court, tried and determined upon different principles of evidence. In a case of doubt, upon the words, such considerations would apply, but where they appear to have been overlooked by the Legislature, and the anomalous effect may be as we have suggested, we do not think the act should operate beyond the plain import of its language, and when a plaintiff claims the benefit of its provisions his case ought to show that he is entitled to the remedy in the form in which he seeks to have it administered.
Upon a careful consideration of the subject, we are of opinion, that this case is not provided for by the second section of the act of 1846, and that the plaintiff was rightfully held to the common law doctrine of evidence. Dwarris, 711. Brown's Maxims, 39.
This view of the first proposition renders it unnecessary, if not improper, to discuss the validity of the second section of [**21]  the act of 1846. Such grave questions should not be passed upon, unless the point necessarily arises, and gives to the judicial expression a decisive effect in the particular case, which cannot be affirmed, where the act in review has no application to the matter in hand.
We are next to inquire whether the release restored the competency of these witnesses, conceding, that they were before incompetent. There is no proof that the paper was executed by the president of the company; but it was under their seal, professing to have been executed by the proper officer, and was actually exhibited and filed in court, as their act and deed, for the purpose of affecting the course of judicial proceedings. If it had not been properly executed the company would not, afterwards, in any court, in a trial by it against these witnesses, for negligence in this particular act, be heard to deny its validity. Such a defence, after it had obtained the benefit of the paper as a release under seal, would be a fraud upon the administration of justice not to be tolerated. The case of Phil. Wil. & Balt. R. R. Co. vs. Howard, 13 Howard 307, 335, is directly in point, where the corporation, 

 [*281]   [**22]  having been sued in assumpsit, and defeated the action, on the ground that the contract was under the seal of the company, was not allowed, in a subsequent action of covenant on the sealed agreement, to show that the instrument sued on had not been properly sealed. The court said, (p. 337.) "we are clearly of opinion, that the defendant cannot be heard to say, that what was asserted on the former trial was false, even if the assertion was made by mistake." The party having had the benefit of the instrument in one action was held to be bound by it in another.
We perceive no error growing out of the form of the release. The liability of the witnesses to the company was merely contingent, depending on the result of this suit, so far as the verdict could be relied on as the measure of damages, and the company could have released no certain amount. These releases must necessarily be of this, or some such form. The party thereby undertakes to give up something that he may gain by the verdict, or to discharge a liability to himself that may be fixed thereby.
The second exception relates to the testimony of Benson. It was agreed, that his evidence should be taken as set forth in the [**23]  affidavit, "as if he was present." We think the correct reading of this agreement is, that his statement should be received to have the same effect, as if the same matter had been offered by him ore tenus, and that any thing that could have then been objected to was equally inadmissible, when presented as part of the affidavit. The parties must have meant this, otherwise the agreement would not have contained any such qualifications. The statements of Benson, objected to, being merely his opinions, we think they were properly excluded.
Judgment affirmed. 

20 of 31 DOCUMENTS 

BALTIMORE & OHIO RAIL ROAD CO. vs. ISRAEL THOMPSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 76; 1856 Md. LEXIS 52 

DECEMBER, 1856, Decided 

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

Trespass quare clausum fregit, brought by the appellee against the appellant, to recover damages for throwing down his fences, entering upon his tract of land called "Hoye's Big Pasture," and scattering, frightening and injuring his cattle, which were depasturing thereon, during the year 1850. The pleadings are sufficiently stated in the opinion of this court.

1st Exception. The plaintiff offered in evidence a lease of this pasture to him from John Hoye, for three years from the 5th of January 1848. The other evidence contained in this exception, which was taken by the defendant to the decision of the court below (PERRY, J.) in overruling its objection to a question put by the plaintiff to the witness, Baker, and his answer thereto, is fully stated in the opinion of this court.

2nd Exception. The plaintiff then proved by Baker that he was frequently in this pasture during the summer of 1850, with a view to purchase these cattle; that the cattle seemed to be restless and wild; that he saw at one time about sixty of them on the outside of the fence, and the rest going up on the inside, and witness helped the plaintiff and [**2]  his son to put them into the pasture; this was in August 1850; cattle were worth that season $ 2.50 per hundred, gross. The other evidence in this exception, which was taken by the defendant to the decision of the court below, in overruling its objection to another question put by the plaintiff to this witness, and the answer thereto, is also fully stated in the opinion of this court.

3rd Exception. The defendant then offered in evidence an agreement, or license, by John Hoye, dated the 8th of August 1848, granting permission to the rail road company to build their road through this land, and proved that, in the year 1850, on the section of the road passing through this pasture, there were only thirty or forty hands and from twelve to fifteen horses, and that there was no blasting on this section; that the witness, who was the resident engineer on the section, never heard any complaint from the plaintiff about disturbing the cattle, and that he had frequently seen them grazing close up to the road, where the hands were at work, and never saw them frightened. Baker was then recalled, for explanation, and stated that an experienced grazier can tell, by the look of cattle, whether [**3]  they have been frightened and scared, or disturbed in the pasture. It was then admitted that the road was constructed through this pasture by the authority of the defendant, and that the fences were pulled down to the extent of the limits of the road, which is in all cases at least sixty-six feet, for the purpose of constructing the same. The defendant then proved by another witness that the plaintiff, in a conversation with him, spoke of the inconvenience of the construction of the road, and said he thought Hoye, his landlord, ought to abate the rent some $ 60 or $ 80, as a compensation to him therefor; that he had not yet paid his rent; and that he also went to the counsel of the company and offered to give up his claim if the company would pay the whole year's rent, ($ 130,) and the counsel thought the company ought not to be charged with the rent for the whole year, but only for a portion of it, but the plaintiff insisted upon the whole.

The defendant then submitted nine prayers, four of which were rejected, and the others granted, and need not be stated, as no questions were made upon them. The prayers rejected were the first, sixth, eighth and ninth. Of these the first and [**4]  sixth are sufficiently stated in the opinion of this court, and the others are as follows:

8th. That in estimating damages in this case, the jury will not allow for any that were remote, contingent or speculative upon the effects of the trespass complained of, and that the damages claimed on account of the cattle's non-thriving, are of that description.

9th. That the plaintiff is not entitled in this action to recover for any consequential damages he may have sustained; and that the non-thriving of his cattle, if the jury believe the same, would be consequential damages, if the jury shall believe they did not thrive because they were disturbed or frightened by the hands or laborers employed in constructing the road.

To the ruling of the court, in rejecting these prayers, the defendant excepted. The verdict and judgment were in favor of the plaintiff for $ 859.90, damages and costs, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A question was asked a witness, a grazier, "what is the difference between the value of the cattle depastured" on a certain tract of land, "compared with what it would have been had they been depastured quietly, and if they had not been disturbed by the making of the rail road?" HELD:

That this question was inadmissible, because it assumes there was a deterioration sustained by the cattle, and that it was owing to the construction of the rail road, which were facts to be proven, and, therefore, for the jury to find, even conceding the witness to be an expert.

The question to an expert must be hypothetically put: if the facts are doubtful, and remain to be found by the jury, an expert who has heard the evidence cannot give his opinion upon the case on trial, but may be asked his opinion upon a similar case hypothetically stated.

An experienced grazier is competent to testify, as an expert, in regard to the condition of cattle, and to causes affecting their health and weight, on a supposed state of facts.

Such a witness is competent to give his opinion of the effect of disturbance on cattle, but not to say, as matter of opinion, that the construction of a rail road through the pasture on which they were feeding, would disturb them and set them to running.

The disturbance being proven, or hypothetically put to the witness, the effect on the fattening properties of the cattle, may be given as a matter of opinion by an expert.

The answer of such a witness to a question, whether a certain cause was sufficient to disturb cattle and prevent their thriving? "I suppose that it would," is equivalent to saying, "I believe that it would," or, "it is my opinion that it would."

The 15th sec. of the act of 1826, ch. 123, the charter of the Baltimore & Ohio Rail Road Company, provides that the company may agree or contract with the "owner or owners" of lands for the right of way, and in case they cannot agree, a jury shall be summoned to assess the damages, whose inquisition shall describe the land taken, and value "the quantity or duration of the interest in the same." HELD:

1st. That the term "owner" includes every person having any title to, or interest in the land, capable of being injured by the construction of the road, and the interest of a termor or lessee cannot be annihilated by a subsequent agreement between the landlord and the company, made without his consent.

2nd. In such a case the compensation must be apportioned among the parties, according to the relative value and magnitude of their respective interests, and a separate inquiry had and a separate award of damages made upon the complaint and application of each.

A prayer that there is no evidence of a particular fact to be found by the jury, is erroneous, if there is some evidence thereof, though slight.

Damages from the non-thriving of cattle, owing to the construction of a rail road through the pasture on which they were feeding, are not remote, contingent or speculative, but are recoverable in an action of trespass, quare clausum fregit.

There is no error in rejecting a prayer which is ambiguous, and, therefore, calculated to mislead the jury.  

COUNSEL:
Thos. J. McKaig for the appellant, argued:

1st. That the question asked by the plaintiff in the first exception was inadmissible, because, 1st, there was no evidence offered to prove that the defendant, or its [**5]  agents, had disturbed the cattle, and the question therefore assumed the very facts to be proved; 2nd, it was asking for a mere conjectural opinion of the witnesses. 1 Wend., 196, Murray vs. Bethune. 4 Do., 320, Gibson vs. Williams; and 3rd, that the testimony could only look to remote, contingent, or speculative damages.

2nd. That the question asked in the second exception was also inadmissible, because, 1st, it was asking for the opinion of the witness, without giving any facts to show on what the opinion was founded, 7 Gill, 10, Brooke vs. Townshend; 2nd, the question and answer were both so indefinite as not to amount to evidence on which the jury could found any judgment, it not defining the degree of disturbance, nor specifying the manner in which the road was constructed, so that the court and jury might be able to judge whether its construction would necessarily injure the cattle; and 3rd, a grazier is not competent to testify as an expert in regard to the condition of cattle, and to causes affecting their health and weight. 2 Porter, 29, Johnson vs. Ballew. 4 H. & McH., 63, Mahoney vs. Ashton. 9 Conn. 102, Kinne vs. Kinne. 6 Do., 9, Morse vs. The State. 1 Starkie on Ev.  [**6]  , 154, (6th Amer. Ed.)

3rd. That the defendant's first prayer ought to have been granted, because it submitted all the evidence to the jury to determine whether Hoye was the owner of the land on the 8th of August 1848, and whether on that day he agreed with the defendant for the right of way. If Hoye was the owner of the land on that day, and sold the right of way to defendant, and the latter's entry on the land was in pursuance of this purchase, how could the plaintiff recover? If the plaintiff held the land comprising the right of way under a lease for three years, Hoye was not the owner, and the jury were competent to find that fact. By the 15th sec. of the act of 1826, ch. 123, the charter of the defendant, the company were authorised to agree with "the owner" of any land for the right of way for their road, and this prayer, on all the evidence offered, submits to the jury the question, whether the company had so agreed with the owner?

4th. That the defendant's sixth prayer ought to have been granted, because there was no evidence in the cause from which a rational mind can infer that the plaintiff sustained any damages for the alleged injury to the cattle by frightening [**7]  or scaring them, caused by the act of the defendant. 4 Md. Rep., 283, Thurston vs. Lloyd. 7 G. & J., 95, Farmers Bank vs. Duvall. 4 Md. Rep., 421, Sasscer vs. Farmers Bank.

5th. That the defendant's eighth prayer ought to have been granted, because, 1st, damages that are remote and contingent, or speculative, upon the effects of the trespass complained of, ought not to have been assessed by the jury; and 2nd, damages claimed on account of the non-thriving of the cattle, from the evidence in the cause, were clearly speculative, not sustained by any evidence from which a rational mind could infer damages, and the testimony was so light and inconclusive that the jury could not infer any amount of damages. 7 H. & J., 37, 39, Davis vs. Davis. 6 Md. Rep., 457, Plank Road Co. vs. Bruce. 9 Gill, 334, Clarke's Admr. vs. Marriott. 1 McCord, 489, Massey vs. Craine. Ibid, 584, Bond vs. Quattlebaum.

6th. That the defendant's ninth prayer ought to have been granted, because consequential damages ought not to have been assessed. The non-thriving of the cattle was not only consequential, but the testimony in reference to this point was "light and inconclusive," and no testimony whatever [**8]  to fix it upon the defendant; for if it be admitted that the laborers on the road prevented the cattle from thriving, the company was not responsible for their trespasses. It would be easy to assign numerous reasons why the cattle did not thrive, quite as probable as that they were disturbed by the hands. There is no evidence that the cattle ever were frightened by any one in the company's employ. No testimony to show what they sold for, or that there was one dollar of loss on the sale of the cattle, or to show that the road was constructed in a manner to frighten cattle, or that the cattle were frightened by the construction of the road. 6 Hill, 523, Crain vs. Petrie. 3 Md. Rep., 78, 79, Stewart vs. Redditt.

William Price for the appellee, argued:

1st. That Baker, being an experienced grazier, and knowing, particularly, all about these cattle, was competent to say to what extent they were injured in the matter of which he speaks, and that his evidence, taken in connection with his explanation brought out by the appellant, was admissible, and consequently there was no error in the ruling of the court below in the first and second exceptions. 1 Greenlf. on Ev., sec. 440. 3 [**9]  Dana., 382, Gentry vs. McMinnis. 1 Philips' Ev., 290. 2 Pick., 304, 309, Griffin vs. Brown. 9 Bing., 333, Ramadge vs. Ryan. 14 Sergt. & Rawle, 137, 141, Kellogg vs. Krauser. 4 Cowen, 355, McKee vs. Nelson. 2 Philips' Ev., 761. 1 Car. & Pay., 70, Malton vs. Nesbit. 4 Pick., 158, 159, Davis vs. Mason. 10 Barn. & Cres., 70, Rickards vs. Murdock. 3 Md. Rep., 78, Stewart vs. Redditt. 7 Gill, 27, Brooke vs. Townshend.

2nd. That the defendant's first prayer was properly rejected. The demise from Hoye to the plaintiff is admitted by the rejoinder of the defendant, and this prayer denies it, and for this reason, if no other, is erroneous. But the demise was the property of the plaintiff, which the rail road company could not take, except upon just compensation. The estate and interest of a termor are within the words and intention of the 15th section of the charter of the defendant.

3rd. That the rejection of the defendant's sixth prayer was right; for there was evidence tending to prove that the cattle were frightened by the construction of the road, and if there was any, no matter how slight, the prayer was properly rejected. 6 G. & J., 297, Steam Nav. Co. vs. Hungerford. 3 Md.  [**10]  Rep., 431, Scott vs. Bay. 2 Philips' Ev., 188.

4th. That there was no error in the rejection of the eighth and ninth prayers, because the injury to the cattle is laid in this case as special damages. 5 Wels. Hurls. & Gordon, 239, Rigby vs. Hewitt. Ibid., 243, Greenland vs. Chaplin, and note on page 248. 3 H. & McH., 510, Johnson vs. Courts. 1 Greenlf. on Ev., sec. 254.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*82]  LE GRAND, C. J., delivered the opinion of this court.
This is an action of trespass quare clausum fregit, brought by the appellee, to recover damages from the appellant, for throwing down his fences, entering upon the land, scattering, frightening and injuring his cattle. To the declaration the defendant pleaded not guilty, and that the locus in quo was the proper soil of the defendant; that it was the soil, at the time of the alleged trespass, of one John Hoye, by whose license the defendant entered, &c. To these pleas there were replications, and to the latter, rejoinders, the pleadings being carried on until issue was joined. It is not necessary the pleadings should be more particularly noticed than [**11]  to state the questions which they substantially present. The plaintiff, under a demise to him, executed by John Hoye, on the fifth 

 [*83]  day of January 1848, claimed, as lessee, the possession and enjoyment of the freehold until the first day of January 1851. The rail road company, in virtue of a license granted to it by John Hoye, on the 8th day of August 1848, claimed the right to enter upon the land.
At the trial the demise of Hoye to the plaintiff was proven, as was also the license from him to the defendant. The plaintiff also proved the entry upon the land by the agents of the defendant, and that at the time of such entry he had at pasture a large number of cattle. It was shown by competent testimony that the cattle had not improved by the depasture. With a view of showing that their unimproved condition was owing to the acts of the agents of the defendant, the plaintiff called to the stand Nicholas Baker, an experienced grazier, who testified that he has been in the business nearly all his life, and for himself for the last ten years. "That the year 1850 was an average season. That he saw the cattle in April or May 1850 as they came in; they were a good lot of [**12]  cattle, rather better than an average; that he was in the pasture several times during the season of 1850, once in August. That he thought the cattle were dissatisfied; that cattle disturbed will not thrive; that cattle were on the rise. Part of the cattle were put into this pasture, about one hundred and fifty or one hundred and sixty. The rest of the cattle were put on the mountain. We (the graziers) aim to get them out by the 1st of October. When the cattle left they were not in a condition to be sold for beef. They were too good for straw feeders." He was then asked the following question: "What is the difference between the value of the cattle depastured on Hoye's Big Pasture, (the locus in quo,) in the fall, compared with what they would have been had they been pastured quietly, and if they had not been disturbed by the making of the rail road." The witness answered, "From seven to ten dollars per head." To the admissibility, both of the question and answer, the defendant objected, and this constitutes the first bill of exceptions.
We think the court erred in allowing the question. The question assumes what had not been proved, to wit, that any 

 [*84]  deterioration which [**13]  the cattle had sustained, and, also, that they had deteriorated, was owing to the rail road construction. Conceding the witness to be an expert the question was improper. The fact to be demonstrated was, that the cattle had been injured by their disturbance by the defendant; it was a fact to be proven and not assumed, and therefore a question for the jury. In such a case the question to an expert ought to be put hypothetically. In the 440th section of 1 Greenleaf on Evidence, is this: "If the facts are doubtful, and remain to be found by the jury, it has been held to be improper to ask an expert, who has heard the evidence, what is his opinion upon the case on trial, though he may be asked his opinion upon a similar case, hypothetically stated." No doubt the question was framed with the design to come within the province of this distinction, but, in our judgment, it does not do so. Had the question been thus put, the demands of the rule would have been gratified: "If the construction of a rail road, such as that of the defendant, through the pasture where cattle are feeding, disturbs such cattle, would, in your opinion, such disturbance have the effect to [**14]  prevent their fattening as well as if they were not so disturbed?" We are of opinion the court erred in the admission of what was objected to, and therefore reverse it on this exception.
After the testimony mentioned in the first exception, the plaintiff, by the same witness, Baker, gave in evidence other facts in regard to the condition of the cattle, and among the matters testified to by him is the following: "I do not know what caused the cattle to run. I never saw any body in the employ of the rail road company disturbing those cattle. I never saw anything disturbing them other than natural causes. I cannot say, on my oath, what prevented those cattle from thriving in that pasture." The plaintiff then propounded the following question: "Was the construction of the rail road through this pasture, and the employment of hands and horses by the company, sufficient alone, without any other cause, to disturb the cattle and prevent their thriving?" He answered: "He supposes that it would." We regard the language of the witness as equivalent or tantamount to,--I believe that it 

 [*85]  would, or, it is my opinion that it would. If this be so, then the admissibility of the [**15]  answer and the propriety of the question will depend entirely on the solution of another, namely, whether a grazier is competent to testify, as an expert, in regard to the condition of cattle, to causes affecting their health and weight, on a supposed state of facts. We are of opinion he is competent.
On questions of science, skill or trade, or others of the like kind, persons of skill may testify not only to facts, but are permitted to give their opinions in evidence. 1 Greenlf. Ev., sec. 440. And so accordingly it has been held, that "persons accustomed to observe the habits of fish have been permitted to give in evidence their opinions, as to the ability of the fish to overcome certain obstructions in the rivers which they were accustomed to ascend. Ibid. If this be so, we see no reason why one who is familiar, from long observation, with the habits of cattle shall not be permitted to give his opinion as to the probable influence of certain causes on their condition. In this record it appears, from the testimony of Baker, that "an experienced grazier can tell by the look of cattle whether they have been frightened, and scared or disturbed in the pasture. [**16]  "
If the question had been confined to the effects of disturbing the cattle by the construction of the road, we think the objection would have been properly overruled. But it went further, and sought to obtain from the witness his opinion, whether the construction of a rail road would frighten or disturb cattle. We think that it needs not an expert as to the habits of cattle to determine such a question. The best evidence would be the observation of those who had seen them disturbed by the construction of the rail road; but if opinion on the question was admissible, we think that of persons who had been engaged in making rail roads should be preferred to the opinions of those acquainted with the habits of cattle, where the case does not also show that the witness had any practical experience of the effect on cattle of making a road through grounds on which they are left to pasture. We consider the witness was competent to give his opinion of the effect of disturbance on cattle; 

 [*86]  but not to say, as matter of opinion, that working on a rail road would disturb and set them to running. He might say the cattle appeared to have been frightened. But how can he say that the making [**17]  a rail road has frightened them? The disturbance being proven, or hypothetically put to the witness, the effect on the fattening properties of the cattle may be given as a matter of opinion by an expert. The objection to the question should have been allowed.
The record states it was "admitted, that the rail road constructed through this pasture was so constructed by the authority of the defendant; and that the fences were pulled down to the extent of the limits of the road, which is in all cases at least sixty-five feet, for the purpose of constructing said road."
The defendant submitted to the court nine prayers, the first, sixth, eighth and ninth of which were rejected, and the second, third, fourth, fifth and seventh granted.
The first prayer asks the court, substantially, to instruct the jury, that if they shall believe from the evidence that John Hoye was the owner of the tract of land in question on the 8th day of August 1848, and that Hoye then agreed with the defendant for the purchase, or use and occupation of that part of the tract of land upon which the rail road was constructed, and that the defendant afterward entered into possession of the same under the agreement,  [**18]  then the plaintiff cannot maintain this action.
We suppose this prayer was drafted with special reference to the 15th section of the act of 1826, chapter 123. It is the act incorporating the defendant. Its 15th section provides, that the defendant, or its agents, may agree and contract "with the owner or owners of any land, earth, timber, gravel, &c., which may be wanted for the construction or repair of any of said roads or of any of their works, for the purchase or use and occupation of the same." The section then provides, that if the parties cannot agree, that then a jury shall be empannelled, in the manner pointed out, to assess damages and to make the condemnation. After a detail, as to the manner of getting together and the number of the jury, it provides, that the inquisition so authorised "shall describe the property taken, 

 [*87]  or the bounds of the land condemned, and the quantity or duration of the interest in the same, valued for the company."
In the present case the appellee had a leasehold interest in the property which would not expire until the first day of January 1851. Hoye, under whom the defendant claims, had made a contract with him in January [**19]  1848 for this term. His license to, or agreement with the defendant, was not made until August of the same year; and the question now is, under this first prayer, whether it was competent to him and the defendant to annihilate the plaintiff's interest in the land without his consent, or even without consultation with him, as appears to be the case in this instance? It seems to us to state the question is to resolve it in the negative. It is an exercise of power such as to shock our every idea of justice. The interest of a termor, in the eye of the law, is just as potential as that of the owner of the fee, although in fact it may not practically be so valuable. No man's property can be taken from him without just compensation, nor in our judgment, was it within the contemplation of the Legislature, when it passed the act of incorporation, to confer any such power, even were it admitted it possessed the constitutional ability to do so. The language of the section sufficiently negatives any such supposition.
The 13th section of the act of 1825, chapter 180, is identical in its language with the 15th section of the act of incorporation of the defendant, and inasmuch as it was very carefully [**20]  considered and elaborately discussed by the learned judges of the sixth judicial district, under the late constitution, in the case of the Tide Water Canal Co. vs. Archer, to be found in the appendix to 9th Gill & Johnson, and as we concur with the opinion expressed by them, we adopt their language as applicable to the point involved in the prayer. It is there said: "The term 'owner,' used in the 13th section of the act of 1825, ch. 180, is evidently intended to include every one having any title to or interest in the land, because it is there provided that the valuation of the jury 'shall be conclusive upon all persons, and shall be paid by the president and directors of the canal company to the owner of the land, or 

 [*88]  his legal representatives, and on payment thereof, the said company shall be seized of such land as of an absolute estate in perpetuity as if conveyed by the owner.' In Ellis vs. Welch, 6 Mass. 246, recognized in Parks vs. Boston, 15 Pick. 203, this point was so settled. In this last case the court say: 'It has been heretofore decided by this court, and apparently upon much consideration, in the case of [**21]  Ellis vs. Welch, ubi sup, that the term 'owner,' in this statute, includes every person having an interest in real estate capable of being damnified by the laying out of a street through or over it, and is equivalent to the description of 'any person damaged in his property,' as used in the general act regulating the laying out of highways. In the same case it is remarked by the court, after saying that in the valuing a piece of land there may be several entirely distinct interests therein, that 'such compensation, therefore, must be apportioned among them, according to the relative magnitude and value of their respective interest, and, of course, there must be a separate inquiry and a separate award of damages, upon the complaint and application of each.'" The court did not err in the rejection of the prayer.
We also think the sixth prayer was properly refused. It asked the court to say there was no evidence in the cause to entitle the plaintiff to recover any damages for the alleged injury to the cattle of the plaintiff by frightening or scaring them, caused by the construction of the said rail road by the said defendant.
Although the evidence is slight, yet we cannot [**22]  say there is no evidence of damage. The fact of the entry on the land and the dispersion of the cattle is proven, and if to this be added the opinion of the witness Baker, we have some evidence which ought to be pronounced upon by the jury.
The court properly rejected the eighth prayer, because it denied the right of recovery for "the damages claimed on account of the cattle's non-thriving." If the non-thriving of the cattle was owing to the making of the road, then whatever damage they sustained because of it, was neither remote, contingent or speculative, but recoverable. The prayer raises no question as to the sufficiency of the proof. See 2 Greenlf. on Evidence, sec. 273, and Johnson vs. Courts, 3 H. & McH. 510.

 [*89]  The court also did right in the rejection of the ninth prayer; if for no other reason than its ambiguity. It was calculated to mislead the jury. It does not clearly appear from its language whether it meant to assert, that the defendant was not responsible for the conduct of its hands or laborers employed in the construction of the road, or whether it merely meant to assert that it was not responsible for their conduct when [**23]  not engaged in the work of the defendant. If the former, it was clearly wrong. See authorities cited in reference to the eighth prayer.
Judgment reversed and procedendo awarded. 

21 of 31 DOCUMENTS 

TABITHA A. WATERS, et al., vs. SAMUEL O. TAZEWELL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 291; 1856 Md. LEXIS 23 

DECEMBER, 1856, Decided 

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

This appeal was taken from a pro forma order of the court below, (KREBS J.,) dissolving an injunction which had been granted upon a bill filed by the appellants. The only questions arising in the case relate to the construction of the two deeds, and marriage articles set out in the opinion of this court, in which, also, all the facts of the case are fully stated.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A deed of trust conveyed leasehold property for the "sole and separate use, benefit and behoof," of a feme sole "her executors, administrators and assigns," so that she might "either receive and take the clear rents, issues and income, or proceeds in case of sale," and apply them as she thought proper, "so that neither the trust estate and property, nor the rents, issues, income or proceeds thereof, should at any time be subject to the power, disposal or control of the present or any future husband," or be subject to his debts; and in case of her death without a will, to such persons as would "take an estate in fee-simple by descent from her." HELD:

That this deed carried the title to the property beyond the period of the wife's death, whether the last limitation be valid or void, and excludes the surviving husband from all claim thereto.

Under the limitation in a deed of trust of personalty for the benefit of a feme covert, in case of intestacy, "to such person or persons as would, by the existing laws of Maryland, take an estate in fee-simple by descent from her," the surviving husband has no claim.

An ultimate limitation either in favor of next of kin or heirs at law does not include a husband, unless there be some manifestation of an intention to include him.

A deed made by a feme sole in contemplation of marriage, securing her property to her separate use, is valid, when free from the imputation of fraud or concealment.

Such a deed followed by marriage, with previous knowledge on the part of the husband of its existence, will secure to the wife a separate estate in the property and bar the marital rights of the husband.

A deed conveying leasehold property in trust for the sole and separate use of a feme covert, contained a provision, that in case the husband should survive the wife, he and his assigns should have the rents, issues and profits, "during his natural life only, to and for his own use and benefit, provided he should continue unmarried after the death of his wife then living, and from and immediately after his decease" then over. HELD:

That this proviso being a general restraint upon marriage by means of a condition subsequent, was void, and the husband's life-estate was not terminated by a second marriage.

Unqualified restrictions on marriage are discouraged on grounds of public policy, and instead of being aided by a liberal construction, they should be construed strictly, so as to favor those on whom the restraints are laid.

Uses in personalty are not executed under the statute of uses, but remain subject to the common law doctrine in regard to uses.  

COUNSEL:
Wm. B. Perine and John Nelson for the appellants, stated that the questions in this case are confined to the two deeds, the one from Baker and McDonald, and the other from Powell and the marriage contract, and then argued.

1st. As to the Baker and McDonald deed. The rule of construction in cases of trusts created by deeds is the same as that adopted in cases of devises, and the intention of the donor is to govern if designated with sufficient certainty. That intent is to be ascertained, and when ascertained, enforced, unless it violate some rule or policy of the law. The whole context is to be regarded, and the general intent will override the particular intent where they are diverse, (9 G. & J., 77, Hope vs. Hutchins. 11 Do.  [**2]  , 206, Chase vs. Lockerman. 3 Md. Rep., 553, Ware vs. Richardson. 4 Do., 536, Holmes vs. Mitchell. 7 Do., 22, Douglas vs. Blackford.) To ascertain and accomplish the intent words will be added, transposed or substracted. (1 Fearne 6, note 1. 1 Jarman on Wills, 731. 7 G. & J., 248, Creswell vs. Lawson. 1 Md. Rep., 168, Chew vs. Chew. 2 Do., 88, Linstead vs. Green.) Even the rule in Shelley's case is not inflexible: for wherever an intent to the contrary is shown upon the face of the instrument, the rule will give way. (9 Gill, 432, Chelton vs. Henderson.) With these principles in view let us look at the deed in question. It is executed by the party herself, who is the beneficiary under the trust, and creates no property in her which she had not before. It was all her own estate, and the only provisions in the deed which effect any change in the property are those which protect her rights as against her husband, and that which provides how the property shall go in default of appointment. Her design and purpose in executing this deed was, unquestionably, to secure the property to herself against any claim of her husband; the intent to exclude the husband is clear. (2 Mylne & Keene, 90,  [**3]  Briden vs. Hewlett. 3 Ves., 486, Long vs. Blackall.) The question then recurs, can this be done? And upon this point the authorities are decisive. Technical trusts are not executed by the statute of uses, as technical uses are, but the legal estate is vested in the trustee in order to effectuate the donor's intention, and where property is conveyed to trustees for the separate use of a married woman, a court of equity will enforce the performance of the trust and protect it against the legal rights of the husband. (16 Pick., 330, Ayer vs. Ayer. 3 Md. Rep., 547, Ware vs. Richardson.) Where a term has been settled to the separate use of the wife, or where before marriage the husband has consented to the settlement of his or her term, he cannot dispose of it. (2 Bright on Hus. & Wife, 99.) The fact that this deed conveys personal property or chattels real, and contains a limitation over, after an absolute or life estate in the wife, is said to render the limitation void. But though the law does not allow limitations of personal estate by way of remainder, in the proper use of that term, yet, by executory bequest or trust, interests in the nature of remainders may be created by will or [**4]  deed, and it is now clear, that there may be a limitation over of personal property after a life estate. (6 Pet., 68, Smith vs. Bell. 6 G. & J., 232, Biscoe vs. Biscoe. 3 Gill, 92, Clagett vs. Worthington. 4 Md. Rep., 535, Holmes vs. Mitchell. 6 Do., 151, Woodland & Wife, vs. Wallis.) But the husband has here renounced all his marital rights to the property in dispute, and he is estopped by the marriage articles from setting up any claim to it. This marriage covenant being his deed, and derogating from his rights as husband, is to be construed, as that of any other grantor, most strongly against him, and he can take no other interest than that expressly given by the deed. (1 Fearne, 90. 2 Bright, 200. 23 Eng, Law & Eq. Rep., 595, Trusts of Mary Daniel's Will. 6 G. & J., 356, Ward vs. Thompson. 5 Md. Rep., 326, Maurer vs. Naill. 3 Ves., 244, Watt vs. Watt. 6 Munf., 132, Bray vs. Dudgeon.) The marriage articles here refer to and embrace the terms of the deed, and were executed to effectuate the purposes of the settlement contained in the deed. By them the husband, in terms as broad and comprehensive as they can be made, relinquishes all claims he may have in the whole estate of his intended [**5]  wife.

2nd. As to the Powell deed: By the terms of this deed, the husband is, after his subsequent marriage, unquestionably excluded from all right in the property conveyed by it; and the same argument in regard to its construction is applicable to this as well as the preceding deed. It is also effected by the marriage articles, which contain a clause expressly applying to future acquisitions from the proceeds of the property.

3rd. But it is said, the surviving husband comes within the terms of the clauses in one or both of these deeds, limiting the property over in default of appointment by the wife. By the first deed the property is to go, in default of appointment, "to such persons as would, by the existing laws of Maryland, take an estate in fee simple by descent from her;" by the second, "to such persons as should be the legal heirs of the said Charlotte," and it is supposed the husband takes under one or both of these clauses. The terms "heir," "right heir," "heir at law" and "legal heirs" are identical and of the same meaning. A legal heir is one who is of the same blood of the deceased. (1 Bouv. Dic., 582. 4 Kent's Com., 537, note.) "Heir at law," when applied to personal [**6]  estate, means the heir to the fee or "next of kin." The term "next of kin," in such cases, never means the "husband," who does not take under the statute of distribution, as distributee, but superior to the statute jure mariti. 5 Ves., 399, Holloway vs. Holloway. 1 Jac. & Walk., 388, Vaux vs. Henderson. 6 Simons, 47, Robinson vs. Smith. 2 Myl. & Keene, 69, Gittings vs. McDermott. 4 Russell, 384, Mounsey vs. Blamire. 7 Law J., 300, Newenham vs. Pittan. 1 Hoff. Ch. Rep., 212, Wright vs. Trustees of Methodist Church. 2 Gill, 237, Mitchell vs. Mitchell. 3 Ves., 244, Watt vs. Watt.

Wm. H. G. Dorsey and Thomas S. Alexander for the appellees, argued:

1st. That the surviving husband is entitled beneficially to the premises conveyed by the Baker and McDonald deed. Deeds must be construed by the language used in them, and the intention and circumstances of the parties. Other deeds, conveying other parcels of property, cannot be resorted to for the purpose of proving the intent with which the particular deed in question was executed. The husband, at common law, has all the personal property of the wife jure mariti, and the onus is, therefore, on the other parties, to show that there [**7]  is something in this deed which restricts this marital of the husband. We insist, that the first limitation in this deed vested the entire interest in Mrs. Crow; and that there is no other limitation to be found in it, which restrains or lessens the effect of the first limitation to the prejudice of the rights of the surviving husband. It gives to her an absolute estate in this property; she had the power to dispose of it at pleasure. In all such cases the ulterior limitations are void. (3 Ves., 7, Pushman vs. Filliter. 2 Coxe, 349, Bland vs. Bland. 11 Ves., 205, Wilson vs. Major. 1 Jac. & Walk., 154, Ross vs. Ross. 1 Merivale, 314, Bull vs. Kingston. 8 Simons, 22, Simmons vs. Simmons. 10 Eng. Ch. Rep., 518, Phillips vs. Eastwood. 10 Johns., 19, Jackson vs. Bull. 16 Do., 588, Jackson vs. Robins. 62 Law Lib., 1. 2 Ves., Jr., 532, Malim vs. Keighley.) The wife thus having the absolute interest in the property and the limitation over being void, the marital rights of the husband attached upon the decease of the wife. The marriage articles do not disturb this settlement, but refer to and purport to confirm it, and they, with the deed, only secure to the wife the sole and separate use of [**8]  the property during her life. The marriage articles are to be construed strictly and as not taking from the husband more than he expressly stipulates to surrender, and here he only agrees to give up to the heirs of the wife such rights as they might have under the deed.

2nd. That the husband is entitled, beneficially, to the entire interest in the premises conveyed by the Powell deed, by force of the last limitation, to be found in it, being, in contemtemplation of law, heir to his deceased wife's leasehold estate. 14 Ves., 478, Carr vs. Lord Erroll. 4 Russel, 384, Mounsey vs. Blamire. 2 Myl. & Keene, 69, Gittings vs. M'Dermott. 1 Ves., Jr., 48, Fettiplace vs. Gorges. 2 Strange, 1111, Rex vs. Bettesworth. The husband takes as next of kin, in the sense of being the party upon whom the law casts the succession. The phrase means next of blood inheritable, in reference to the statute of distributions, and not next of blood in the sense of consanguinity.

3rd. But, in the alternative, the husband is entitled to an estate for life, in the premises last mentioned, by force of the express limitation thereof, to him for the term of his life. The condition in reference to a future marriage [**9]  is in restraint of marriage, and is to be enforced only in favor of the person claiming under the subsequent limitation, which is not to be extended or enlarged by equitable construction. As then the limitation is to take effect by the express letter, only after the death of the appellee, the condition during his life is inoperative. (1 Story's Eq., sec. 257, and cases there cited.) The condition, that his interest shall become void on his subsequent marriage, being succeeded by a limitation, which is to take effect only after his death, there remains, in the event which has happened, an interest undisposed of, which is in the nature of a resulting trust, and devolved on him as surviving husband.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*297]  ECCLESTON, J., delivered the opinion of this court.
The bill in this case speaks of several parcels of property, the controversy in regard to which has been settled by agreement between the parties. And the only property now in dispute is mentioned in the two deeds to Denison, in trust, one from Baker and McDonald, dated the 22nd of April 1839, and the other from Powell, dated the [**10]  13th of August 1841.
The bill was filed by the appellants against the appellees. On the 23rd of February 1855, by consent, a decree was passed, which disposed of sundry matters set forth in the bill as grounds of claim. On the 28th of May 1855, a pro forma order was passed, dissolving an injunction which had been issued for the purpose of enjoining Tazewell from conveying, assigning, or in any manner alienating the property now in controversy. From which order this appeal has been taken, for the purpose of obtaining the decision of this court as to the rights of the respective parties, in relation to the property mentioned in the two deeds which have been referred to.

 [*298]  Charlotte A. Crow, a widow, being possessed of certain real and personal property, on the 11th of July 1837, conveyed the same to Marcus Denison, his heirs, executors, administrators and assigns, to the use of the said Marcus Denison, his heirs, executors, administrators and assigns, forever, in trust and confidence for such uses, intents and purposes, as most undoubtedly gave to the said Charlotte, at all events, whilst a feme sole, full power and authority to sell, dispose of and convey the said [**11]  property, or any part thereof, and the rents, issues, income and profits of the same, as she might deem proper.
Out of the issues and profits of the property included in the deed last mentioned, Charlotte A. Crow purchased, on the 22nd of April 1839, the leasehold lot of ground on Pitt street in Baltimore, which is described in the deed from Baker and McDonald, and which, by the directions of Charlotte, was conveyed by that deed to M. Denison, his executors, administrators and assigns, "in trust for the sole and separate use, benefit and behoof of the above named Charlotte A. Crow, her executors, administrators and assigns, so that she be suffered and permitted either to receive and take the clear rents, issues and income, or proceeds in case of sale, as aforesaid, to apply to such uses and purposes as she should think proper, in the same manner as if she were a feme sole, so that neither the said trust estate and property, nor the rents, issues, income or proceeds thereof should at any time be subject to the power, disposal or control of the present or any future husband of the said Charlotte A. Crow, or be in any manner liable or bound for or by his debts, contracts or engagements.  [**12]  And from and immediately after the decease of the said Charlotte A. Crow, in case no sale or disposition shall have been made by her of said ground and premises by deed or contract, then in trust for such person or persons, or for such uses and purposes as she by her last will and testament, executed in the presence of and attested by three credible witnesses, should name, limit or appoint; and in default of such nomination, limitation and appointment, then for the use and benefit of such person or persons as would, by the now (then) existing laws of the 

 [*299]  State of Maryland, take an estate in fee-simple by descent from her, and to, for and upon no other use, trust, intent or purpose whatsoever."
In contemplation of an intended marriage between Mrs. Crow and Tazewell, (the appellee,) he executed a marriage covenant on the 1st of March 1841, which, after referring to the intended marriage, recited, that although the estate, real and personal, of the said Charlotte A. Crow had been conveyed to trustees for her sole use and benefit, still it seemed agreeable and proper that the covenants thereinafter expressed should be made, "in order to satisfy all parties, and to secure the [**13]  property to which the said Charlotte A. Crow is in any way entitled, from the control or interference of the said Samuel Oliver Tazewell," And in consideration of the premises, and for other considerations, the said Tazewell covenanted, granted, promised and agreed, that Mrs. Crow should and might, "at all times thereafter, have, hold, occupy, enjoy, use and dispose of, peaceably and quietly, in such manner as she might think fit, all rents and profits, use, service and income, arising, or to arise, out of land, negroes, bank stock, or any other property, real, personal or mixed," to which she was then in any manner entitled, "free from the let, suit, hindrance, trouble, denial, expulsion, interruption or interference of the said Samuel Oliver Tazewell, without being interrupted in the enjoyment thereof by any act, means, consent, privity, default or procurement of his, and freed from any right, title or interest therein, which he, the said Oliver Tazewell, might otherwise have therein by virtue of the said marriage then about to be solemnized; and further, that no part of the said estate of the said Charlotte Augusta should thereafter become liable for any debt or obligation of the [**14]  said Samuel Oliver Tazewell, whether the same be debts contracted before or after the marriage; and particularly, and lastly, that he, the said Samuel Oliver Tazewell, would never interfere in any way in selling, or otherwise disposing of, any slave or slaves of the said Charlotte Augusta Crow, without her express desire, and without her free and entire consent."
Shortly after the execution of the marriage covenant the 

 [*300]  marriage took place; and subsequently thereto, on the 13th of August 1841, Charlotte purchased a leasehold lot of ground from Samuel A. Powell, for $ 1200, with funds belonging to her for her sole and separate use; which property, by her directions, and with the knowledge and assent of her husband, was conveyed to Denison, his executors, administrators and assigns, "in trust that he, the said Denison, permit and suffer the said Charlotte Augusta Tazewell, and her assigns, to have and receive the rents, issues and profits of the said premises, free from all control whatever from her said husband, or any future husband, for and during so many of the term of ninety-nine years then to come and unexpired, as she should happen to live;" and if she should wish [**15]  and consent to assign the premises, "then in trust that he, the said Marcus Denison, his executors, administrators or assigns, should assign and transfer the said premises," in such manner as she might direct or authorise; and if the said premises should not be sold during the lifetime of the said Charlotte, then, after her death, the said leasehold property should "be in such person or persons, and upon such conditions, manner and form as the said Charlotte A. Tazewell should, whether covert or discovert, by any writing purporting to be her last will and testament, duly executed and testified in the presence of two credible witnesses, give, limit, dispose, direct and appoint;" and in default of any such gift, limitation, disposition, direction or appointment, "then in trust that the said Marcus Denison, his executors, administrators or assigns, in case Oliver Tazewell, the husband, should survive his wife, should pay, or else permit the said Oliver Tazewell and his assigns to receive, the rents, issues and profits of the said leasehold premises during his natural life only, to and for his own use and benefit, provided the said Oliver Tazewell should continue unmarried after the death [**16]  of his wife then living, and from and immediately after his decease, then to go, and be transferred and assigned to such person or persons as should be the legal heirs of the said Charlotte A. Tazewell, for and during so many years of the said term of ninety-nine years as should be then unexpired."

 [*301]  In April 1853, Mrs. Tazewell died, having made no will, leaving no child or descendant of a child, and without having disposed of, or made any appointment in regard to, any of the property mentioned in the deed from Baker and McDonald, or in that from Powell. She was the sister of the complainants, who, at the time of her death, were, and still are, her only heirs at law and next of kin.
Tazewell, the surviving husband, married again in April 1854.
The appellants contend, that the pro forma order dissolving the injunction should be reversed. They claim, that as next of kin to Charlotte A. Tazewell, upon the true construction of the deed from Baker and McDonald, the marriage covenant and the deed from Powell, they are entitled to the leasehold property mentioned in those two deeds; insisting, that whatever estate in the property included in the Powell deed Samuel O. Tazewell [**17]  had, at any time, was terminated by his second marriage.
It will be seen that this controversy is in reference to personal property, and is, therefore, subject to the common law doctrine in regard to uses, as uses in personalty are not executed under the statute of 27th Hen. 8, ch. 10. We make this remark to avoid misapprehensions which might arise from decisions made under the statute.
As the decision we are about to make has been very much influenced by that of the Supreme Court of the United States, in Marshall vs. Beall, 6 How., 70, it will be proper to state the circumstances of that case.
The matter there in dispute was a judgment for $ 1500, the question being, whether the surviving husband or the next of kin of the deceased wife were entitled to the money?
In contemplation of a marriage between Robert Marshall and Ann Berry, they entered into a written agreement, that Ann should "hold in herself all her right, title and interest" to certain "funds of her own." After the marriage, on the 1st of May 1824, the husband and wife executed a deed of trust to S. G. Beall, referring to the former agreement, and reciting, that when made the said Robert [**18]  agreed to make any 

 [*302]  other or further instrument of conveyance, which might be considered necessary fully to assure and convey the stock and debts to the sole and separate use of the said Ann, her heirs and assigns, free and clear from any debts, control, demands or incumbrances of the said Robert; and also reciting, that the husband and wife had agreed to dispose of and settle two judgments, (one for $ 2000, and the other for $ 1500,) and a tract of land, "by a more full, complete and formal instrument of writing than the marriage agreement," before mentioned, "according to the terms, stipulations and conditions" of the instrument then being executed. By which deed the parcel of land and the two judgments were conveyed and assigned to S. G. Beall, her heirs, executors, administrators and assigns; the land to be held in trust for the use of the husband and wife during their joint lives, and to the use of the husband for his life, if he should be the survivor;--the further trust being, that the husband should have and receive the judgment for $ 2000, with interest and costs, "to his sole and separate use, free and clear of the marriage contract before mentioned, and of [**19]  all separate claim of the said Ann Marshall;" "and in further trust that the said Susan G. Beall should hold the said judgment of fifteen hundred dollars, with interest and costs, for the sole and separate use of the said Ann Marshall, her executors, administrators and assigns, free and clear from any control or demand of the said Robert Marshall, or of his creditors, debts or engagements; and upon the payment of the said judgment, or any part thereof, to invest the said money in stock, or to loan the same on interest, with the approbation of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall; and in further trust, that the said Ann Marshall, during the life of her husband, may dispose of said judgment or the proceeds thereof, and of her right, interest and estate in the said tract of land, after the death of the said Robert Marshall, either by her last will and testament, or by any instrument of writing, under her hand and seal, in the presence of two witnesses, during her coverture, in the same manner as if she were single."
The wife died without making any disposition of this judgment, 

 [*303]  and the surviving husband claimed it,  [**20]  but he was defeated.
In delivering the opinion of the court, Mr. Justice Catron says: "The question presented for our decision is, whether the husband only made a temporary surrender of his marital rights during the coverture, or whether he abandoned them altogether? This depends on the intention of the parties, as expressed in the marriage articles." By "marriage articles," it is evident he alludes to the two instruments we have spoken of. He speaks of the first agreement as being vague, rendering it doubtful whether the marital rights of the husband would not attach, although the court did not doubt the wife desired, and really intended, to retain her property as if she was a feme sole, notwithstanding the marriage. Reference is then made to what is called "the article of 1834." This is erroneous in point of date. The instrument alluded to is, manifestly, the trust deed dated the 1st of May 1824. In relation to this the court say: "We think that the terms of the agreement of 1834 sufficiently show, that the intention of the parties was, to carry the title of the fund beyond the period of the wife's death, and to exclude the husband. And in this conclusion we are supported by [**21]  the opinion of the Court of Appeals of Maryland, in the case of Ward vs. Thompson, 6 Gill & Johns., 349, and in the soundness of which opinion we fully concur."
In Ward, et ux., vs. Thompson, 6 G. & J., 349, the antenuptial settlement between Robert Thompson and Ann W. Menger, provided, that the real and personal property of Ann should be held in trust, "to and for the use and benefit of the said Ann W. Menger, her heirs and assigns, forever, without impeachment of, or for any manner of waste, all of which property to be under and subject to, the exclusive and entire management and control of the said Ann W. Menger, her heirs, executors, administrators or assigns, without the interference in any manner of the said Robert Thompson. And the said Ann W. Menger, her heirs, executors, administrators or assigns, to receive and enjoy the rents, issues and profits thereof; and the said Ann W. Menger to have full power and authority to make such disposition of all, or any part of said 

 [*304]  property, as she at any time might think proper and advisable, and to dispose of the same by last will and testament, in as full, free and ample manner as [**22]  if she were not a married woman, but a feme sole." Under which settlement the court held, that the husband had not made a temporary surrender of his marital rights over the estate, "but had abandoned them forever," and they directed a revocation of the letters of administration which had been granted to him, upon the personal estate of his deceased wife.
There being some difference in the language of the two deeds, under which the present controversy arises, we will first confine ourselves to the one from Baker and McDonald: The property mentioned in this is claimed by Tazewell under one or the other of two views. First, that the provision in reference to who should take in case of no will is void, and no one can claim title under it, because the previous provisions gave the entire and complete equitable estate to Mrs. Crow, without limit or restriction, so that any disposition of it, which she might make, would not take effect as under a mere power, but by virtue of her proprietary right. And with such an estate in her, the marital rights of the husband attached upon the decease of the wife, if not before; the deed itself, or that, with the aid of the marriage covenant, only [**23]  having the effect of securing to her the sole and separate use of the property during her life. But supposing this position to be erroneous, then it is said, if the use provided for, in case of intestacy, is valid, the husband is not excluded, but, under the correct interpretation of that provision, he is entitled to claim.
This latter view will be first disposed of.
We need not decide whether, "such person or persons, as would, by the now existing laws of Maryland, take an estate in fee-simple by descent from her," means next of kin, (as personal property is intended to be conveyed,) or heirs at law, technically such. The appellants are admitted to be the next of kin and heirs at law, and, therefore, are capable of taking, whether they must claim in the one character or the other; whilst, in our opinion, the appellee, Tazewell, cannot claim under either.

 [*305]  In 2 Bright on Husband & Wife, 203, it is said to have been decided, "that the husband took no beneficial interest under an ultimate limitation in a settlement to the right heir or heirs of the wife." For this decision the author refers to Newenham vs. Pittan, (should be Pittar,) 7 Law J., N. S.  [**24]   300. The report of that case shows, that by a marriage settlement designed to aid in making provision for the wife, and issue, if any, of the contemplated marriage, certain personal property of the intended wife was assigned to trustees, in trust for her, her heirs, executors, administrators and assigns, until the marriage, and then in trust, "to pay the annual income to her, or as she should appoint, for her life, and after her death to pay them to her husband for life, and after the decease of both of them, in case there should be no children of the marriage," then in trust to convey, assign and assure the property "to the right heir or heirs" of the wife forever. The wife died without issue, and the surviving husband took out letters of administration on her estate. In the bill filed by him, he claimed to be absolutely entitled to the whole of the property against the trustees of the settlement, the heirs at law, and the next of kin of the deceased wife.
In the opinion given, in 1838, by Lord Langdale, as Master of the Rolls, he says, "Is the husband the right heir of his wife? Does he come under that description? I think it is admitted, that he does not come under the literal [**25]  meaning of the term. But it was said, that the right heir might mean such person as should become by law entitled to succeed to the property; that the husband is the personal representative of the wife, and, therefore, although he is not entitled to this property without letters of administration, yet he is entitled to it with the aid of these letters. Can that be the meaning of this sentence? The words here cannot be considered as idly or carelessly used in the different parts of this settlement. We find a limitation in trust for the intended wife, 'her heirs, executors, administrators and assigns,' until the marriage; and in default of issue there is a trust for the right heirs or heir of the wife. Having regard to the whole instrument, I cannot doubt that I must attribute to this settlement an intention 

 [*306]  to exclude the husband. If it had been intended that the husband should have been a trustee for the next of kin, very different words would have been used. The words 'heirs and heir of the wife' being used, and the husband not coming under these words, and there being nothing in the settlement to alter their meaning, the effect of them is to exclude the husband."
The [**26]  court declined deciding "the question, who was entitled after the husband was excluded;" not deeming it the proper time for such a decision, inasmuch as under the ultimate limitation, the property was not to be enjoyed until after the decease of the surviving husband.
The counsel for Tazewell have not said that he can claim as heir at law, but they contend, that as the property disposed of is personalty, the expression, "Such person or person as would, by the now existing laws of Maryland, take an estate in fee-simple by descent from her," must be considered as meaning next of kin; in which character the husband may take. To this we cannot assent. On the contrary, a careful examination of the authorities has convinced us, that an ultimate limitation, either in favor of next of kin or of heirs at law, does not include a husband, unless there be some manifestation of an intention to include him; and here we find no evidence of such intention.  6 How., 70, Marshall vs. Beall, and cases there referred to. 1 Pow. on Dev., 290, (by Jarman,) in 21 Law Lib. 170. 2 Roper on Husb. & Wife, 63, in 32 Law Lib. 41, 42.  Stewart vs. Stewart, 7 John. Ch. Rep. 246 & 247. [**27]  Wright & Others vs. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. Rep., 213, 214. 2 Jarman on Wills, (Ed. of 1855,) marg. p. 37, (and note 2,) also marg. p. 49, (and note 1,) and Newenham vs. Pittar.
The husband, as such, cannot, with any propriety, be said to take property, by descent, from the wife. His marital rights attach by or during the coverture. By contract they may be temporarily suspended or permanently abandoned. In Ward, et ux., vs. Thompson, Judge Dorsey says: "The marital rights of the husband having been suspended only during the life of the wife, after her death they are as effectually revived, 

 [*307]  as regards the future, as if no such suspension had ever taken place."
The husband, in our opinion, is excluded from any right to the property, under the provision in favor of those who would "take an estate in fee-simple by descent," if that is not a void but a valid provision. If, however, it is void, so as to pass no estate, still it may be used in connection with the other portions of the deed, as evidence of an intention to bar the marital rights of the husband beyond the life of the wife.
If the provision is [**28]  a valid one the husband has no claim, but the appellants have. Whether valid or void, however, will make no difference in the result, for if void, still the deed will bar the rights of the husband and establish those of the appellants. This must be so, if we are to respect the ruling of the courts in Marshall vs. Beall, and Ward, et ux., vs. Thompson. We have seen that the trust is "for the sole and separate use, benefit and behoof" of Mrs. Crow, "her executors, administrators and assigns," so that she might "either receive and take the clear rents, issues and income, or proceeds, in case of sale," and apply them "as if she were a feme sole, so that neither the said trust estate and property, nor the rents, issues, income or proceeds thereof, should, at any time, be subject to the power, disposal or control" of her husband, or be subject to his debts. And then follows the provision in favor of those who would "take an estate in fee-simple by descent," in the event of no will being made.
If the language of the agreements, in the two cases which have been noticed, and especially the one in 6 How., was sufficient to show, that the parties intended [**29]  "to carry the title of the property beyond the period of the wife's death, and to exclude the husband," we think the terms of the deed before us may be justly considered as having a like effect.
The agreements, referred to in those cases, were ante-nup tial contracts, made and signed by both parties, in contemplation of a speedy marriage. The present is a deed conveying property in trust for the sole and separate use of a feme sole, with a view to protect it from the marital rights of any future husband, but without reference to a marriage then in contemplation. 

 [*308]  At one time the validity of such instruments was questioned, but they are now admitted to have the effect of securing to the feme the separate use of her property, after marriage, according to the provisions contained in them, when free from any imputation of fraud or concealment. There can be no such imputation in the present instance, because before the marriage Mr. Tazewell had knowledge of the deed, as may be seen by the marriage covenant. The subsequent marriage, therefore, in connection with this covenant, may be regarded as a virtual adoption of the provisions of the deed by the husband. And that [**30]  such a deed, followed by marriage, with previous knowledge on the part of the husband, as to its existence, will secure to the wife a separate estate in the property, and bar the marital rights of the husband, may be seen by reference to the following authorities: 2 Bright on Husb. & Wife, 205. 2 Kent's Com., 164 & 165, marg. pages, and the notes, (7th Ed.) 2 Story's Eq., sec. 1384, and notes, (5th Ed.) 1 Jarman on Wills, 835, marg. p., (Ed. of 1855.)
Believing, as we do, that under the provisions of the deed the husband is excluded, we have not considered it necessary to ascertain, whether the counsel for the appellants are right in contending that his marital rights are barred forever, by the covenants contained in the marriage agreement; or whether the counsel for the appellees have given the correct construction to that instrument, in supposing it only covenants for securing to the wife, the sole and separate use of her property for life.
The appellants claim the property mentioned in the Powell deed, because, according to the terms of that instrument, Tazewell's interest in the premises ceased upon his second marriage. The portion of the deed [**31]  which relates particularly to this question, provides, that in case the husband should survive his wife, he and his assigns should have the rents, issues and profits, "during his natural life only, to and for his own use and benefit, provided he should continue unmarried after the death of his wife, then living, and from and immediately after his decease, then to go and be transferred," &c.

 [*309]  Although the use to the husband for life is followed by a proviso or condition, that he should remain unmarried, yet the gift over is not upon his marriage, but "from and immediately after his decease." It is not, in terms, a gift over, based upon the event of a second marriage. If allowed to limit or reduce the life estate it will be giving effect to a provision, in reference to personal property, imposing, not a partial, but a general restraint upon marriage, by means, not of a precedent, but of a subsequent condition, in the absence of any limitation over, on a failure to comply with the condition. Unqualified restrictions on marriage are discouraged on grounds of public policy, and instead of aiding them by applying liberal rules of construction, the courts have been disposed to [**32]  construe them strictly, in such manner as will favor the persons on whom the restraints are laid. We, therefore, cannot adopt the views of the appellants' counsel, so as to consider the gift over, after the husband's decease, as taking effect upon his second marriage; or that his life estate terminated upon the occurrence of that event. 1 Story's Eq., secs. 279, 280, 283, 286 to 290, and notes, (last Ed.) 1 Jarman on Wills, 841, 842 & 843, marg. paging, (Ed. of 1855.) Binnerman vs. Weaver, et al., 8 Md. Rep., 517.
By reference to Chitt. on Cont., sec. 671, (6th Am. Ed.,) and Story on Cont., sec., 557, it may be seen in what an unfavorable light general restraints upon marriage are regarded, when attempted to be effected by means of express contracts.
In our opinion, the appellants are entitled to the property mentioned in the deed from Baker and McDonald, but they have no right to demand possession of that which is described in the deed from Powell.
The order dissolving the injunction will be affirmed, and the cause remanded for further proceedings, in accordance with the principles announced in this opinion.
Order affirmed  [**33]   and cause remanded. 

22 of 31 DOCUMENTS 

SAMUEL B. WILSON, Adm'r ad colligendum of SAMUEL OWENS, vs. MARY E. F. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 67; 1856 Md. LEXIS 51 

DECEMBER, 1856, Decided 

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

Replevin by the appellant, who was appointed administrator ad colligendum of the estate of Samuel Owens on the 23rd of February 1849, to recover a negro slave named Milly, alleged to belong to said estate. Pleas, non cepit, property in defendant, property in a stranger, and actio non accrevit infra tres annos.

1st Exception. The evidence in the case on both sides is sufficiently stated in the opinion of this court. The defendant then asked the following instruction to the jury:

That if the jury believe from the evidence that negro Milly, for whom this action is brought, was the slave of Samuel Owens, and that he died in possession of her in the year 1815, and that he bequeathed her to his wife and executrix, Mary Owens, and that said Mary took possession of said negro, with the other estate of her husband, after his death, and held her for many years, and that said Mary afterwards paid off all the debts of her said husband, and sold at public sale all his personal estate except the negroes, and that said Mary afterwards, about the year 1834, sold the said negro as a slave for life to one Abraham Lowe, who lived in [**2]  the neighborhood, and that at the time of the sale two of the daughters and legatees in remainder of the said Samuel Owens were living with their mother, the said Mary, and were of full age, and agreed to the said sale, and that young Owens, another son of the said Samuel, had before that time died a minor and intestate, and that Enoch Neale intermarried with one of these daughters, Mary, and afterwards admitted that he had received his wife's distributive share of the personal estate of Samuel Owens aforesaid, and that William T. Wilson intermarried with the other daughter, and lived in Calvert county until about the year 1852, and is the same William T. Wilson who is the attesting witness to two of the deeds offered in evidence, and is the father of the plaintiff, and that the other legatees in remainder of the estate of Samuel Owens, the Hollingsheads, all arrived at full age in 1833, or before, and had always before the year 1823 lived in Calvert county, and in the neighborhood of their grandmother, the said Mary Owens, and in that year they all removed to the city of Baltimore, where they have since lived, except one, who died about the year 18--, and that Abraham Lowe, and all [**3]  those claiming under him, have since the said sale to him held the exclusive possession of the said Milly as their slave for life in Calvert county; then that the jury ought to presume that letters testamentary had been granted to the said Mary Owens on the personal estate of Samuel Owens, and that the said estate had been settled up, and that negro Milly was held by the said Mary Owens as tenant for life under the will of Samuel Owens aforesaid, and that therefore the plaintiff, as collector as aforesaid, is not entitled to recover in this action. The court, (BREWER, J.,) granted this prayer, and to this ruling the plaintiff excepted.

2nd Exception. The plaintiff then asked the following instructions to the jury:

1st. That the facts and circumstances given in evidence to them in this case, if believed by them, are not sufficient in law to warrant the jury in presuming that Mary Owens took out letters testamentary on the estate of Samuel Owens.

2nd. That if from the evidence they believe that in the sale made by Mary Owens in 1834, of negro Milly to Abraham Lowe, she did not sell as executrix of Samuel Owens, but only as legatee under his will, then that such sale conferred [**4]  no such title to Abraham Lowe, or his assigns, in said negro, as under the pleadings and evidence in this case would be a bar to the plaintiff's right of recovery.

3rd. That if from all the facts and evidence given in this case, if believed by them, the jury do not believe that Mary Owens took out letters testamentary on the estate of Samuel Owens, or that any other person administered upon the same prior to the granting of letters ad colligendum in this case, then the plaintiff is entitled to recover, though they should find that in 1834 the said Mary Owens sold and delivered the said negro to Abraham Lowe as a slave for life.

These prayers the court refused to grant. To this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

An instruction was asked that the jury ought to presume the grant of letters testamentary upon their finding certain facts stated in it, among which was not included the proof on the opposite side that the records of the orphans court did not show the granting of such letters, and the declarations and admissions of the widow of the deceased, who was named as executrix in the will, and of parties claiming under her, that no such letters had been granted. HELD:

That this instruction was calculated to mislead the jury, and its imperative direction to the jury would be a fatal objection to it if there were no other.

Though it is the right of a party to segregate a portion of the testimony in a cause and ask the opinion of the court upon it, yet such instruction ought not to be granted if it be such as is likely to mislead the jury.  

COUNSEL:
Alex. B. Hagner and John M. S. Causin for the appellant, argued:

1st. That the court erred in granting the prayer of the defendant:--1st. Because the instruction to the jury was peremptory, leaving them no discretion to draw presumptions or deductions from the evidence given. There is a clear distinction between conclusive presumptions of law and presumptions [**5]  of fact, upon which the jury are to decide, and the present case comes within the latter, and not the former, class of presumptions. 1 Greenlf. on Ev., secs. 14, 15, 18, 19, 32, 33, 39, 44, 46, 48. Best on Presumptions, secs. 35, 37, 39. It is not a case of a conclusive presumption of law, or a disputable presumption without opposing proof, and the jury ought not to have been told, as they were in this instruction, that they must presume the grant of letters testamentary. 3 Starkie on Ev., 1241, 1243, 1244. 9 Clark & Finnelly, 782, Lord Trimlestown vs. Kemmis. 10 Pet., 519, Columbia Ins. Co. vs. Lawrence, and the same case in 2 Pet., 55. 9 Md. Rep., 52, Peterson vs. Ellicott. 2 Wend., 13, Schauber vs. Jackson. 3 Philips on Ev., 470, 501, notes 286, 287. 66 Law Lib., 212. 1 Gill, 497, Casey's Lessee vs. Inloes. The prayer excludes from the consideration of the jury all the proof on the part of the appellant; it takes no notice of the fact that the records of the orphans court show that there never had been any letters of administration granted, and of the admissions and declarations of Mary Owens that she never did in fact administer upon the estate.

2nd. That the court erred in [**6]  refusing to grant the plaintiff's 1st prayer, because, in its language, the facts and circumstances given in evidence, if believed by them were not sufficient in law to warrant the jury in presuming that Mary Owens took out letters testamentary on the estate of Samuel Owens. 4 H. & J., 403, 408, 424, Fishwick vs. Sewell. 6 G. & J., 136, Burke vs, Negro Joe. 3 H. & J., 20, Cockey vs. Smith. The whole case is reconcilable with a different theory than that of the presumption of a grant of letters testamentary.

3rd. That if Mary Owens only sold a life estate to Abraham Lowe, his possession could not be adverse, even as against an administrator, until after the death of Mary Owens, which, occurring in 1848, was within three years prior to the institution of this suit, and therefore limitations could not bar.

4th. That limitations could in no wise bar the plaintiff's right of recovery in this case, in the event that no administration had been taken out on the estate of Samuel Owens, the possession of Lowe having commenced after his death. 4 H. & J., 428, 429. 7 H. & J., 24, Haslett vs. Glenn.

5th. Deeds inter partes may under circumstances be presumed, but not official appointments [**7]  to private agencies. There is no case to be found of a presumption of the grant of letters testamentary. There is a clear distinction between the source of the power of executors in this State and in England. In England executors derive their authority solely from the will, and not from the official grant of letters testamentary, whilst in this State they derive their authority from the grant of letters by the court. 2 G. & J., 80, Winchester vs. Union Bank. Best on Presumptions, secs. 65, note (d,) 110, 111. 3 Starkie on Ev., 1219. 1 Greenlf. on Ev., sec. 20. 4 G. & J., 332, Kraft vs. Wickey. 3 H. & J., 468, Mundell vs. Clerklee. 11 How., 346, 360, Weatherhead vs. Baskerville.

6th. That it was proper to leave the presumption of administration or no administration to the discretion of the jury upon the evidence adduced. This being conceded, and upon the hypothesis assumed by our third prayer that the jury would find that no letters of administration or letters testamentary had been taken out on the estate, then it is clear that no legal title could be passed by Mary Owens to the negro in question as a slave for life, and whatever interest as legatee under the will she could convey [**8]  terminated at the date of her death in 1848. Best on Presumptions, secs. 18, 19, 40.

Alexander Randall for the appellee, argued:

1st. That if the jury did believe the facts set forth in the appellee's prayer, they ought to presume that letters testamentary had been granted to Mary Owens on the personal estate of Samuel Owens, and that the estate had been settled up, and that the negro in question was held by Mary Owens as tenant for life under the will, and therefore the plaintiff was not entitled to recover. That such a presumption was authorised from the facts stated in the prayer, is fully sustained by the authorities, and especially those of our own State. 3 Starkie on Ev., 1252, 1253, 1254. 1 Greenlf. on Ev., secs. 21, 45. Best on Presumptions, 145. 4 H. & J., 399, 408, 425, 428, 430, Fishwick vs. Sewell. 2 G. & J., 99, Allender vs. Riston. 1 Gill, 428, Gardner & Hughes, vs. Simmes. 9 Gill, 133, Anderson vs. Garrett. 2 Gill, 145, Ridenour vs. Keller. 2 Md. Rep., 427, Lark vs. Linstead. 6 G. & J., 141, Burke vs. Negro Joe. 9 Gill, 484, Henderson vs. Jason. 1 Gill, 505, Casey's Lessee vs. Inloes. 2 G. & J., 220, Watkins' Adm'r vs. The State. 5 Gill, 74, Flickinger vs.  [**9]  Hull. 7 Md. Rep., 101, Union Bank vs. Kerr.

2nd. That the defendant had the right to submit these facts to the court, and ask that this instruction upon them be given to the jury. 1 Greenlf. on Ev., sec. 46. 3 H. & J., 28, Cockey vs. Smith. 3 H. & McH., 104, Smith's Lessee vs. Steele. 1 H. & J., 173, Carroll vs. Norwood. 6 H. & J., 356, 360, Beall vs. Lynn. 9 Gill, 487, Henderson vs. Jason. 2 G. & J., 125, Shilmcht vs. Eastburn. 6 Md. Rep., 10, Miller & Mayhew, vs. Atwell. 7 Md. Rep., Union Bank vs. Kerr.

3rd. That if the tenant for life, Mary Owens, had possession rightfully of such negroes as were bequeathed to her for life, then the estate of Samuel Owens was entirely delivered thereof, and no interest or claim in these negroes could ever again vest in the estate, or in any administrator or collector of the estate, but that the legatees of the reversion in these negroes, and they alone, had right to sue for their interest in them. 1 Roper on Legacies, 231, 570. Toller on Exc'rs, 309. 2 Wms. on Exc'rs, 859. 1 Atk., 471, Leeke vs. Bennet. 6 G. & J., 183, Evans vs. Iglehart. 1 Gill, 428, Gardner & Hughes, vs. Simmes. These points dispose of the first and second prayers of [**10]  the plaintiff.

4th. That the third prayer of the plaintiff requires the court to instruct the jury that the plaintiff is entitled to recover, unless the jury believe that letters testamentary had been actually taken out on the estate of Samuel Owens; and also denies to the jury the right under the evidence to presume that there had been such administration, or that they could find a title to this negro out of the estate of Samuel Owens in any other manner. This prayer, therefore, was erroneous. 4 H. & J., 399, Fishwick vs. Sewell. 2 G. & J., 80, Winchester vs. Union Bank. 1 Roper on Legacies, 313, 566 to 573. 2 Do., 539. Toller's Exc'rs, 45, 46.

5th. Because if the jury did believe and find under the hypothesis of this third prayer, that in 1834 Mary Owens sold and delivered the negro to Abraham Lowe as a slave for life, she must have transferred a valid title in this negro to him, and if so, neither the plaintiff, nor any other person, save the representatives and assigns of Lowe, could thereafter have any title thereto.

6th. That though the decision of the court below be erroneous, yet if this court can see from the facts of the case that the appellant has no cause [**11]  of action, a procedendo will not be ordered. 8 Md. Rep., 208, Roloson vs. Carson. Ibid., 274, Cline & Francis, vs. Miller. 5 Do., 433, Stewart vs. Spedden.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*73]  LE GRAND, C. J., delivered the opinion of this court.
This was an action of replevin, instituted in the circuit court for Calvert county, on the 30th day of April 1850, for the recovery of negro woman named Milly, claimed by the plaintiff as the property of Samuel Owens, late of that county. The usual pleas in replevin were filed, including actio non accrevit infra tres annos.
The plaintiff proved that Samuel Owens died in Calvert county in the year 1815, and that it no where appeared among the records of the register of wills of said county that any letters testamentary, or of administration, were ever granted upon 

 [*74]  the estate of Samuel Owens, or other proceedings had in reference thereto, prior to the appointment of the plaintiff as administrator ad colligendum. The plaintiff also proved that up until the time of his death, Samuel Owens occupied and worked a piece of land, the annual rent of which was about [**12]  $ 150, and that he had farming utensils, household furniture, and certain negroes, among which was Milly. The defendant then gave in evidence the will of Owens, by which he devised, for life, to his wife, Mary, all his property, real and personal, with remainder to his children and grand-children, and declared his wish to be that his wife should be administratrix. And also that Samuel Owens, at the time of his death, was indebted to the extent of $ 178, which debts, prior to 1828, were paid off by one Richard Hance, at the request of the widow, Mary, and that sometime after the payment of the debts, she executed, on the 7th day of October 1828, a mortgage to Hance of certain property of her late husband, to secure said Hance against loss by said payment. That Samuel Owens, at the time of his death, had the following named children and grand-children, viz: Sarah Owens, who was fourteen years old at the death of her father, and who, in 1824, married William T. Wilson; Mary Owens, who was twenty-five years old when her father died, and who, ten or fifteen years after her father's death, and before 1828, married Enoch Neale; and Francis Hollingshead, and Samuel and Mary Hollingshead,  [**13]  children of Francis and Rebecca Hollingshead, the latter a daughter of Samuel Owens, who died before the said Samuel; that Sarah and Mary Owens lived with their mother until their respective marriages; that Francis Hollingshead and his children (who were then minors,) lived on a farm adjoining that of Samuel Owens, at his death, and that they removed to Baltimore in 1823; she (the defendant) proved that in 1834 the said widow, Mary Owens, sold the woman Milly, with others, issue of Milly, born after the death of Samuel Owens, to a certain Abraham Lowe, as slaves for life, and executed a bill of sale for the same. To this bill of sale William T. Wilson, son-in-law of Mary Owens, was a witness. Lowe held possession of the woman, Milly, up to the time of his death, claiming her as 

 [*75]  his slave for life. After his death the woman was distributed as a portion of his estate, and came into possession of Mrs. Ireland, wife of Benjamin Ireland, as one of the distributees of said Lowe. In 1847, she was sold at public sale by B. Owens, administrator of Ireland, as part of the estate of the latter. The defendant became the purchaser, and retained possession of the woman until the bringing [**14]  of this action. It was also proven, on behalf of the plaintiff, by the witness, Richard Hance, that at the time of the execution of the mortgage to him, some conversation took place between him and Mary Owens, as to her right to make the mortgage without administration upon the estate of Samuel Owens, in which she said, there was no necessity for administration, that it was only necessary to pay off the debts, that all would be settled without it; and further proved by the same witness that he never dealt with her as executrix or administratrix. There was other evidence adduced on the part of the plaintiff, whereby it appeared that in the year 1834, Abraham Lowe had said, he had purchased some negroes from Mrs. Owens, and was going to send a cart for them, and on being informed there had been no letters of administration granted on the estate of Samuel Owens, and that she had no right to dispose of them, he declared he did not care, that Mrs. Owens owed him a large bill, and if he got the negroes into his possession, he would take care of himself.
The plaintiff offered to the court three, and the defendant one prayer; the latter was granted, and the others rejected. In this ruling [**15]  we think the court fell into error. The prayer on the part of the defendant does not present all the facts, but only a part of them, studiously excluding all allusion to the evidence in regard to the state of the records of the register of wills, and of the declarations of Mrs. Owens and Lowe, that no letters of administration had been granted. Although it is the right of a party to segregate a portion of the testimony in a cause, and ask the opinion of the court upon it, (1 Gill 127,) yet the court will not grant such instruction, if it be such as will likely mislead the jury; and we consider the direction asked on the part of the defendant of such a character. It 

 [*76]  not only told them they might, in direct opposition to the record and proof, presume the granting of letters, but they ought to presume their existence. If there were no other objection to the prayer, its imperative direction to the jury would be fatal; but there are others to which we need not refer, as this one is sufficient.
Judgment reversed and procedendo awarded. 

23 of 31 DOCUMENTS 

WILLIAM RIDER and JONATHAN TROTTER vs. JOHN B. GRAY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 282; 1856 Md. LEXIS 74 

DECEMBER, 1856, Decided 

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

The bill in this case was filed on the 15th of November 1851, by the appellants, having for its object the specific performance of the following agreement:

"Memorandum of an agreement made this 16th day of April 1850, by and between John B. Gray of Fredericksburg, State of Virginia, who represents himself to be the owner of the Abrego Cinnabar ore mine in California, of the first part, and William Rider and Jonathan Trotter, both of the city, county and State of New York, of the second part, witnesseth, that the said Gray, in consideration of $ 10.000, to him in hand paid by the said William Rider and Jonathan Trotter, the receipt whereof is hereby acknowledged, hath agreed to give, and doth hereby give said William Rider and Jonathan Trotter, full power and authority to take from said cinnabar mines, one thousand tons of cinnabar ore, of such quality as they or their agents shall select, and the same to smelt on the premises, or ship it away to any other place or places to be smelted, with their agreement to give me, the said Gray, thirty-three per cent. of said ore, I paying freight and expenses to the point of shipment,  [**2]  or if smelted on the ground, they are to give me thirty-three per cent of the nett proceeds of the quicksilver taken from it; and I further agree to give, and do hereby give said William Rider and Jonathan Trotter, full power and authority to occupy any land in and about said mine belonging to me, for the purpose of pasturage, or to locate smelting apparatus and dwellings upon for miners, agents, &c., as well as the privilege of taking such quantity of timber and wood from the premises as may be necessary to use for dwellings, furnaces and smelting purposes; and further, to do all other things that they may think necessary to be done, in order to enable them to mine said ore, and smelt or transfer the same, upon the condition that they give me their obligation to pay over to me thirty-three per cent. of the nett proceeds as aforesaid. Proper and legal papers to be drawn up as soon as may be, and signed by the parties hereto, when this is to be cancelled.

(Signed,)   J. B. GRAY.

Witness:--(J. B. Hubbard.")

The bill avers this to be a grant to the complainants of one thousand tons of ore, to be taken from the mine, with the privilege to take the same on the terms mentioned [**3]  in the agreement. It then states, that the complainants have not, as yet, to any extent, availed themselves of this grant, nor received any of the privileges thereof, having had faith in Gray, that he would, in no wise, at any time, do aught to frustrate the same, nor interpose any obstacle to their free access to the mine, for the use and fruits of the grant, whenever they might deem it expedient to avail themselves thereof. The bill then charges that Gray, designing to defraud the complainants of their right thus acquired and vested, has transferred the mine and mining privileges to certain persons, in trust for divers individuals and himself, constituting a joint stock association, styled the "Santa Clara Mining Association," whose stock capital, consisting of this mine and privileges, is established at $ 350.000, the members being bound to pay their subscriptions in various instalments; that the stockholders, other than Gray, have paid out a small proportion of their subscriptions; that Gray has reserved to himself a very large proportion of the stock which now remains vested in him undisposed of; that in the formation of this association, and creation of this stock-interest in [**4]  the mine, Gray has made no reservation of the rights of the complainants under their grant, in which respect he has been guilty of a fraudulent default to them, as this omission brings them into conflict and possible controversy with the stockholders of the association, a wrong of serious concern to the complainants, who value their interest under the grant, at not less than $ 200.000. The complainants then insist, that as these stockholders have not paid their subscriptions in full, and inasmuch as Gray holds an amount of reserved stock, and has in his agreement with the company, reserved a proportion of the ore or of the mines, they are entitled to have their grant carried into full effect according to its tenor, and enforced against any claims and antecedently to any interests of the stockholders and of Gray, and that the latter's alleged interest in the ore and in the mines, stands equally as any of his stock-interest, bound to make good the grant to the complainants.

The bill then makes Gray and the trustees, officers and stockholders of the "Santa Clara Mining Association," parties defendants, and prays, 1st, for a discovery of their respective interests in the stock of [**5]  the association, the number of shares they respectively hold, the amount they have actually paid and agreed to pay therefor, and of all transfers thereof; 2nd, for a specific performance of the contract as against all the defendants; 3rd, that the defendants may be enjoined from transferring any stock or other interest in the mine, until the complainants shall have received their one thousand tons of ore; and 4th, for general relief.

All the defendants united in a demurrer to the bill, upon the grounds:--1st. That it does not state a case, entitling the complainants to any such discovery or relief as is sought by it; and 2nd. That the remedy, if any, is at law and not in equity.

The court (KREBS, J.) delivered an opinion, in which, after deciding that none of the defendants were entitled to the defence of bona fide purchasers without notice, inasmuch as the facts necessary to constitute such a defence do not clearly appear on the face of the bill, which is admitted by the demurrer, the learned judge thus considers the question, whether the complainants are entitled to a specific execution of this contract?

"An application to a court of equity for specific performance,  [**6]  is addressed to its discretion, and does not rest upon any absolute right to have the prayer granted. This discretion, however, must not be arbitrary and capricious, but sound and reasonable, and governed by principles of justice. Story's Eq., sec. 742. 5 Mason, 255, McNeil vs. Magee. Some of the rules and principles adopted by courts of equity, to regulate their decisions in these cases, are the following, viz:

"That the contract, of which a court of equity will enforce the specific performance, must be mutually binding on each of the parties to it; each must have by its terms a right to compel the other to perform it, according to the advantage which it might be supposed they were to derive from it.  4 Gill, 476, Geiger vs. Green. 2 Barbour, 439, Woodward vs. Harris.

"It must be fair, just, certain and reasonable, in all its parts, and it must not appear doubtful from the circumstances, whether the party meant to contract to the extent to which he is sought to be charged.  4 Gill, 475. Story's Eq., sec. 751.  2 Sch. & Lef., 554, Harnett vs. Yielding.

"The party who asks specific performance must aver and show performance, or a readiness to perform on his part, every thing [**7]  required of him by the contract, (5 Mason, 255, 256; 2 Sumner, 296, Kendall vs. Almy; 11 G. & J., 446, Oliver vs. Palmer & Hamilton,) or a default on the other side which entirely excuses him. He must show himself, in the strong language of many of the decisions, ready, desirous, prompt and eager; nothing but strong controlling circumstances will excuse delay. 5 Mason, 263.

"If the plaintiff's case cannot stand the test of each of these principles, he must fail in securing the aid of a court of equity. That they are the principles which must control this court is certain, because the Court of Appeals of this State has regulated its decisions by them in several cases exceedingly analogous, and in one almost identical with it. In Geiger vs. Green, 4 Gill, 476, Mrs. Owings, by an indenture of writing signed by herself and Green, had granted to him the privilege of digging and mining the ore on a certain part of her place, at 25 cents per ton, for the privilege of ground and leave to build a house at his expense. The court say: 'There is no mutuality in this contract; it is not compulsory in its character; it grants to Green the privilege of digging ore to be exercised or not at his [**8]  pleasure, imposing no corresponding obligations which Owings had power to enforce in a court of equity. A contract so unequal in its stipulations and bearing, which binds one party while it leaves the other unfettered as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal engagements, and which must be regarded, therefore, as unreasonable and inequitable, can never be enforced by a court of equity.' In Tyson vs. Watts, 7 Gill, 154, it appeared that Watts had copper ore and other minerals on his farm in Baltimore county, and being desirous to have them properly explored and worked, 'in consideration of one dollar paid to him by Petherick,' (who assigned to Tyson,) 'agreed to give to the said Petherick, his heirs and assigns, full power to make such explorations and works on the said farm, as he the said Petherick might think proper, for such purposes, and for the reduction and conversion of the minerals, and to carry away and dispose of the same subject to the following conditions, viz: That the said Watts reserved to himself a full fifteenth part of the minerals or metals, and that Petherick should on or before a day mentioned, commence proper [**9]  explorations for the purpose of ascertaining the mineral prospects on the said farm.' The court says, this case is concluded by Geiger vs. Green, above cited; that the contract has no mutuality, or reciprocal obligations in it; that it grants to Petherick in perpetuity, full power to make such explorations as he may think proper, for the reduction and conversion of the minerals, and yet when the conditions are examined, Petherick has only stipulated for the exploration, &c., on or before a certain time: but if Petherick in the exercise of the privileges granted by the agreement had refused to work the mine, it would be impossible for Watts, without the interpolation into the contract of new conditions and stipulations, to have coerced its execution by a court of equity.

"These decisions then, of our own court of last resort, establish:--1st. That a contract without mutuality and reciprocity, cannot be enforced in a court of equity. 2nd. That according to a proper construction of the contracts or grants set forth in the two cases above cited, they are deficient in these qualities.

"The only question left for this court to decide, in connection with this point is, whether the [**10]  contract or grant recited in the complainants' bill, and which they seek to have enforced, is similar to those mentioned in these cases? They differ in one particular, which however does not touch the question of mutuality. Those contracts grant the right or privilege to mine, to an unterminated extent, on the grantor's land:--this restricts the grantees to the mining of one thousand tons of ore only. But the question is, does it compel them to mine even that quantity?

"It may be remarked, that they have not as yet signed it. But as they come into court to enforce it, this objection perhaps would not weigh greatly, if the instrument contained apt words or terms by which they were bound to perform any acts on their part. This contract or grant is almost in the same words as those in which the instruments of writing in Geiger vs. Green, and in Tyson vs. Watts, are expressed. It gives Rider and Trotter full power to take from the cinnabar mines one thousand tons of ore, and do all other things that they may think necessary to be done, to enable them to mine said ore and smelt, or transfer the same, they agreeing to give Gray one-third of the ore or of the metal, and upon condition [**11]  that they give him their obligation to pay over the said one-third, but in precise resemblance to the contracts in those cases, it contains no agreement or obligation on their part, to take this ore, or to mine and smelt it, and fixes no time whatever when the mining is to be commenced. It acknowledges the receipt of a consideration, as did that between Watts and Petherick, and upon a careful comparison of these several contracts, I can discover no substantial difference between them. It cannot be doubted that in this case, as in the case of Watts and Petherick, the party owning the ore was desirous to have it mined, and must have looked to his receipts of metal from the mine, as a source of great revenue; for the complainants allege that their proportion of this ore would have been worth $ 200.000, and Gray, therefore, would have received $ 100.000, as his share. This large item in the consideration of the grant or contract, is left by its terms to depend altogether upon the will and pleasure of Rider and Trotter, who could not be compelled by any judicial power whatever to perform this part of the contract. I am constrained therefore, in view of the foregoing decisions, and the facts [**12]  on which they are founded, so closely resembling the facts in this case, to regard this grant or contract as altogether one, which this court cannot execute.

"But is this contract fair, just, certain and reasonable in all its parts, and is it not doubtful, from the circumstances, whether Gray meant to contract to the extent to which he is sought to be charged? According to their construction of it, as set forth in their bill, they insist, it secures to them free access to the mine, whenever they might deem it expedient to avail themselves of the grant, and reduce into their possession from the mine their one thousand tons of ore, and that Gray was in no wise, at any time, to interpose any obstacle to their free access to the mine for the purposes aforesaid. Is it not exceedingly doubtful from the circumstances, whether Gray meant to contract to this extent? Can it be conceived that he did mean to do so? to bind himself, for all time, to hold his mine to be entered upon and worked whenever they might deem it expedient to commence? No man at this day, when the enterprise of the world is so actively employed, in developing the mineral resources of the earth, and the spirit of speculation [**13]  is running from land to land in search of the hidden treasure, would knowingly so fetter and tie up his power to dispose of or deal with his mineral property. This grant, according to the complainants' interpretation of it, and that seems to be warranted by its terms, does not appear to me to be so fair, just, certain and reasonable, in all its parts, as to entitle it to the favor from this court that they bespeak for it. It is certainly liable equally with the contract in Tyson vs. Watts, to the objection of uncertainty, pointed out by Chancellor Johnson in that contract. He there says, "if this contract is to be enforced against the defendant, the complainant should surely be required to perform the agreement on his part. But what can he be required to do? and when shall he be required to do it? He tells you himself, that no time is fixed for working the mines; that is referred to his discretion." So in this case, no time is fixed for working this cinnabar mine, and taking the one thousand tons of ore. That is to be done, as the complainants say in their bill, when they may deem it expedient.

"Again, have the complainants averred performance, or a readiness to perform every [**14]  thing required of them by this contract, or stated any default on the other side which entirely excuses them? In Oliver vs. Palmer & Hamilton, the Court of Appeals say: 'It is one of the oldest and soundest principles of equity, that he who goes into a court of chancery invoking its interposition in his behalf, must allege in his bill that he has done, or has offered to do, or is ready and willing to do, all that on his part is necessary to entitle him to the relief which he seeks; or he must set forth adequate reasons why he shall be excused from doing so.' In that case a party had directed another to pay to a creditor of the former a sum of money, and the written order giving this direction contained these words: 'On the payment of the above sum, P. & H. will deliver to you my two notes,' &c., 'and relinquish all claims against me.' The court says, this was 'a condition of concurrent performance,' the notes should have been produced, and the release signed, 'and the payment of the money and delivery of the release should have been simultaneous acts; to entitle the parties to demand payment of this order, they must not only be ready to execute the requisite relinquishment,' &c. 'This [**15]  they have nowhere either alleged or proved, that they ever have done.' Now the contract under consideration contains a condition, which, to say the least of it, is concurrent. The grant of this right to mine this one thousand tons of ore is made, 'upon the condition that they' (Rider and Trotter) 'give me' (Gray) 'their obligation to pay over to me thirty-three per cent of the nett proceeds as aforesaid.' Now the complainants have not alleged in their bill, as it was incumbent on them to do, that they ever gave, or tendered to Gray, this obligation. Nor have they alleged any sufficient reason, or any reason whatever, for this omission. It is true that they have, in argument, relied upon the fact, that Gray having transferred this mine to other parties, they, the complainants, were exempt from this condition, inasmuch as it would have been useless for them to tender their obligation to him after he had disabled himself from performing his part of the contract. But it is to be observed, that the time when this transfer was made is nowhere stated in the bill. The grant is dated the 16th of April 1850, and the bill is filed on the 15th of June 1851, more than eighteen months afterwards.  [**16]  The transfer may have been made, for aught that appears in the case, before the bill was filed, and not until long after this obligation should have been given or tendered.

"The mere fact of the transfer cannot excuse the complainants. If it had really been made so soon after the date of the contract, as not to have allowed Rider and Trotter reasonable time to give their obligation as required, and this had been alleged, it might, perhaps, have excused the non-performance of their part of this condition. The case set forth in the bill is not at all inconsistent with the theory, that Gray may have called upon them, time after time, during this interval, to give their obligation according to the condition of this grant. And there is a further stipulation in it, which it seems to me imposed an obligation on the complainants, which it is not alleged they performed or offered to perform. It says, 'proper and legal papers to be drawn up as soon as may be, and signed by the parties hereto, when this is to be cancelled.' The complainants do not show that these papers were drawn up as soon as might be, and tendered to Gray. They should have done this, or explained the reasons why it had [**17]  not been done, especially as they come into court asking for the specific performance of an agreement, which the parties to it did not regard as a permanent instrument that expressed with proper and legal accuracy their meaning, and contained such obligations as would bind them mutually and reciprocally to the performance of every thing that the 'memorandum of agreement' as they designated it, contemplated. It is perfectly manifest, that they never regarded this instrument of writing as the basis of a specific performance, and yet this is the very contract the complainants pray to have specifically executed by this court.

"But further, have the complainants shown themselves ready, desirous, prompt, and eager, in the strong language of the court? They say in their bill, that they have not availed themselves, to any extent, of the grant, nor exercised any of the privileges thereof. This was more than eighteen months after the grant. They do not allege that they had made any explorations or examinations of the mine, or any preparations whatever for taking or mining the ore; or that they or any agent of theirs had ever viewed or taken possession of it or of the premises, that they [**18]  had expended any money in preliminary preparations or arrangements for these purposes; or that they were, at the time of filing the bill, ready with their servants and agents, or with their funds, to proceed to mine this ore. Now, if the one-third of this ore formed any part of the inducement that moved Gray to make this grant or contract, if it was an item in the consideration for it, and who can doubt that it was the great benefit and advantage that he expected to derive from it, then Rider and Trotter have not been ready, desirous, prompt and eager, to make this mine yield to him his proportion of the ore to be derived from his share of the profit and advantage to accrue from the contract, as this court thinks they should have been to entitle them to its coercive interposition. If the contract should be executed according to their construction of it, it will depend altogether on their views of expediency whether he will ever derive any benefit under it, for they ask the court so to enforce it as that Gray, and all others under him, shall be compelled to stand off until they, Rider and Trotter, have taken their ore, which it is alleged by them they have a right to take whenever they [**19]  deem it expedient to do so. In the case of Crofton vs. Ormsby, 2 Sch. & Lef., 602, the court says: 'where the performance of the contract is sought by the defaulting party, he cannot enforce it against the person injured by his default.' This case further decides, that where the object of one of the parties would be defeated by delay in the execution of it, if the other party delay he shall not afterwards be allowed to insist on performance. Lord Chancellor Redesdale refers to many cases in support of this position, and says: 'I remember another case, of a different description, where the same thing was held,' and then mentions a case of the precise description of this. 'A contract was entered into by a Mr. Sparrow, with persons who were desirous to have their collieries worked and made productive.' Sparrow delayed for several years the performance of the contract, and when performance of the contract was afterwards insisted on, the Lord Chancellor says, the court declared in these words: 'You cannot have this contract performed, because the object of the parties was to have an immediate income from their collieries,' and then proceeds in his own language: 'in many other cases of this [**20]  description courts of equity ought to refuse specific performance where the delay would be very injurious to the party sought to be charged.'

"The court has examined this contract carefully, and finds it to be a mere memorandum, or preliminary agreement; evidently not containing the words of obligation designed to make it mutually binding upon the respective parties, upon its face providing for some other obligation to be given by Rider and Trotter, and stipulating for proper and legal papers to be drawn 'as soon as may be, and signed by the parties,' when it is to 'be cancelled.' For these reasons and those above set forth, this court cannot consistently with the principles and rules established by courts of equity, and the well settled decisions of our own courts, enforce this contract, and must therefore sustain the demurrer."

A decree was then passed, dismissing the bill so far as it seeks a specific performance of the contract; but retaining it so far as it alleges the payment of the money by the complainants to Gray, as the consideration of the contract, for the purpose of affording them such relief as they may be entitled to in reference to the money so alleged to [**21]  have been paid by them, by decree for its repayment, or of some part thereof, if it should appear that in equity the same or any part thereof should be decreed to be repaid, with liberty to Gray to answer the bill in reference to this allegation and make such defense as he may be advised to rely upon against such repayment: "Provided, that said bill shall be retained for the purpose of affording said relief to said Rider and Trotter, in reference to said money so alleged by them to have been paid, upon the condition, that said Rider and Trotter, within thirty days from the date of this decree, shall file in this court to be cancelled, the original agreement between them and said Gray, a copy of which is filed as an exhibit with the said bill; otherwise said bill to stand and be absolutely dismissed against all the defendants with costs."

The complainants then, within the prescribed time, filed the original agreement, with this endorsement thereon: "Original of the paper of which a copy is filed with the bill in this case; this original being required by the decree to be filed, and the complainants filing it now under protest, that this filing is in no wise to be regarded as an [**22]  acquiescence in said decree, on the part of the complainants, or as a waiver of any rights (on appeal or otherwise) belonging to the complainants in case of not filing this paper." The complainants then appealed from the decree.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

A contract between G. and R. & T., provided, that "in consideration of $ 10.000, paid" by the latter to the former, G. agrees to give R. & T. "full power and authority to take from" his mine, "one thousand tons of cinnabar ore, of such quality as they or their agents shall select, and the same to smelt on the premises, or ship it away" for that purpose, "upon condition that they give" him "their obligation to pay over to" him one-third of the "net proceeds" of the ore if smelted on the ground, and one-third of the ore itself if shipped away, less expenses to the point of shipment which were in that case to be paid by him. It also provided, that "proper and legal papers" should "be drawn up as soon as may be, and signed by the parties," when this "memorandum of agreement" is to be cancelled. Upon demurrer to a bill by R. & T., for the specific execution of this contract: HELD,

1st. That it cannot be specifically executed, because it is not mutual, fair, just, certain and reasonable, in all its parts: the fact that a substantial consideration was paid, cannot vary the construction of the instrument, or supply essentials in which it is deficient.

2nd. But as the demurrer admits the allegations of the bill, that the complainants were deprived of the benefits of the agreement by the fraudulent contrivances of the defendant, he must be held to the confession and not allowed to answer, and compensation will be decreed by the court without an issue of quantum damnificatus, the measure of damages being the amount paid with interest from the date of the agreement.

Where a decree dismisses a bill so far as it seeks specific performance, but retains it for compensation, and the defendant does not appeal, he cannot, in the appellate court, complain of the provision in the decree for compensation; yet the complainants may so complain on their appeal, if being entitled to compensation, the decree does not go far enough in that behalf.

A decree dismissed the bill as to specific execution, but retained it for compensation, "upon condition" that the complainants, within a certain time, filed the original contract in court to be cancelled, "otherwise the bill to stand dismissed." HELD:

That this condition did not take from the complainants their right of appeal, and if they had filed the agreement without any protest, they might have appealed and claimed a reversal or modification of the decree to suit the equity of the case.  

COUNSEL:
Charles F. Mayer for the appellants, argued:

1st. That the appellants are entitled to the benefit of their agreement with Gray. It is founded on a consideration actually paid, and is, thus far, an interest equitably vested. In this respect it differs from the cases of Tyson vs. Watts, and Geiger vs. Green, where, by the vague agreements, the rights of the owners of the mines over the whole estate, for any benefit whatsoever, or any uses, were kept indefinitely suspended for a consideration that was to accrue, and to be meted out only at the caprice of the claimants of the mining rights, and at a pace as lagging as they might make it. Proper mutuality, which here was at the very formation of the contract complete on the part of the complainants, was adjudged to be wanting in those cases. Our side of the mutuality of this contract is the $ 10,000 in money paid. This, too, is a bill to allow, virtually, the complainants to take out [**23]  ore, which the introduction by the defendant of the antagonist claims of the company prevented or impeded. 1 G. & J., 227, Tiernan vs. Poor. 8 Gill, 261, Alexander vs. Walter. 4 Md. Rep., 331, Crane vs. Gough. 5 Do., 35, Stoddert vs. Bowie. 5 Mason, 255, McNeil vs. Magee. 6 Md. Rep., 430, Bowie vs. Stonestreet. 2 Story's Eq., secs. 796, 797, 798. 9 How., 390, Tayloe vs. Merchants' Fire Ins. Co.

2nd. If this be a case of specific performance merely, however, and the point of "mutuality or reasonableness" can at all arise, the answer, against all hazards of injustice and all possible complaint of unreasonableness, is, that the privilege of the complainants does not interfere with Gray's using the land and working the mines, and that if we fail to take out our one thousand tons, and all the ore shall have been exhausted by the intermediate mining of Gray or the company, the loss is ours, and to be borne as the forfeit of our negligence. 5 Coke, 25, Sir Thos. Palmer's case. 2 Roll. Abr., 64, 65. 4 Bac. Abr., 537, title "Grant."

3rd. There is no condition precedent that we shall give an obligation for a third of "the nett proceeds" to Gray--at furthest it is a condition subsequent--but [**24]  be it one or the other, our bill now asks to be allowed to give the obligation, if not expressly, as part of the very terms on which we seek relief, that all papers in legal form pass between us and Gray. The so called condition, however, refers only to the act and period of our choosing to smelt the ore and sell the product, in which event a specific obligation for Gray's third of the "nett proceeds" might be naturally required, and even then it is to be regarded as but a condition subsequent. 7 G. & J., 239, Creswell vs. Lawson.

4th. The equity is clear against Gray and the company to admit our mining privilege to intervene--certainly against the company, if the title to them has not been consummated by their payment of the purchase money to Gray--and, in any event, against Gray for his reserved rights in the sale to the company. 2 Atk., 630, Story vs. Lord Windsor. 3 Peere Wms., 307, Tourville vs. Naish. 2 Eq. Cases Abr., 685. 2 Younge & Col., 234, Titley vs. Davies. We are here upon demurrer to a bill charging a flagrant fraud upon the part of Gray, and this is an answer to all the charges of laches on our part. 3 Pet., 220, Boyce's Exc'rs vs. Grundy. Laches must appear, as [**25]  a matter of fact, affirmatively. 14 Pet., 174, Taylor vs. Longworth. They should have hastened us by request, or we have our lifetime to perform the contract in. Coke Litt., 208, (b,) 219, (b.) 2 Bac. Abr., 323, 325, title "Conditions." A license coupled with an interest is not revocable. 1 G. & J., 366, Hays vs. Richardson. That we had no remedy at law, see 1 Story's Eq., secs. 64 to 72, 80. 2 Do., sec. 718. 3 Pet., 215, Boyce vs. Grundy.

Charles Marshall and Grafton L. Dulany for the appellees, argued:

1st. That the contract in this case is not, nor was it intended to be, a mere grant of the ore to the appellants, but that it contemplates an undertaking on their part to work the mines and take the ore therefrom, partly for their own benefit and partly for the benefit of Gray, and that upon the face of the memorandum certain acts are required to be done by the appellants as conditions precedent to, or at least concurrent with, the enjoyment by them of any rights under the contract:--1st. They were to give Gray their obligation to pay him thirty-three per cent. of the ore. 2nd. Among the proper and legal papers required to be signed by the parties, was not only the above [**26]  obligation, but also some instrument binding them to work the mines and take the ore in a reasonable time, no such obligation being found in the memorandum itself, which binds Gray alone. 3rd. Conceding the above not to be requisite, still the nature of the contract required that the appellants should take the ore from the mines in a reasonable time, and they admit that they had done nothing from the date of the contract, 16th of April 1850, to the filing of the bill, 15th of November 1851. And we insist, that the appellants, not having alleged that they performed, or offered to perform, or were ready and willing to perform, their part of the contract, and having alleged no reason why they should be excused, or any justification for the default of which they appear from the bill to be guilty, are not entitled to the relief they ask. Story's Eq. Pl., secs. 255, 257. 2 Story's Eq., 771. 11 G. & J., 445, Oliver vs. Palmer & Hamilton. 5 Mason, 253, McNeil vs. Magee. 2 Sumner, 296, Kendall vs. Almy. 5 Ves., 720, (note,) Milward vs. Earl of Thanet. 13 Do., 225, Alley vs. Deschamps. 4 Dallas, 347, Hollingsworth vs. Fry. 1 Johns. Ch. Rep., 370, Benedict vs. Lynch. 5 Viner's Abr., 538. 4 Ves.  [**27]  , 687, Harrington vs. Wheeler. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb.

2nd. Because this memorandum is not certain, fair and equal in all its parts, is not of mutual obligation, Gray alone being bound by it, and, for want of some obligation on the appellants, does not accomplish the objects Gray had in view in entering into it; and lastly, because it would now be impossible to award to Gray full and beneficial satisfaction in damages for the laches, whereof the appellants appear by their bill to have been guilty. 2 Story's Eq., secs. 750, 769, 776. 7 Gill, 131, Tyson vs. Watts. 4 Gill, 472, Geiger vs. Green. 1 Sch. & Lef., 21, Lawrenson vs. Butler. 3 Eng. Law & Eq. Rep., 425, Governor, &c., vs. Fox. 1 Johns. Ch. Rep., 372, Benedict vs. Lynch. 2 Sch. & Lef., 553, Harnett vs. Yielding. 2 Md. Ch. Dec., 404, Duvall vs. Myers. If the appellees had attempted to proceed against the complainants, what could they have recovered? They make no covenant, no stipulation, and do not even sign the contract. It is not a grant, but a mere revocable license. 13 Mees. & Wels., 847, Wood vs. Leadbitter. 10 Lib. Law & Eq., 102. 53 Law Lib., 3. 1 Chitty's Pr., 305. 5 Barn. & Cres., 221, Hewlins vs.  [**28]  Shippam. 1 G. & J., 382, Hays vs. Richardson. As a grant, it is void at common law, and courts of equity never will enforce a contract thus void unless there is part performance. There is no part performance here. The simple payment of money is never so regarded; for there is in such cases a full redress at law.

3rd. Because the appellees, other than Gray, appear from the bill to be bona fide purchasers, without notice, for value, (the bill not charging notice,) and even admitting they have paid but part of the consideration, nevertheless the contract cannot be specifically enforced against them without injury to their rights, nor is it any longer possible to enforce it against Gray, he having fairly parted with the control of the property, while the appellants were in default. Story's Eq. Pl., sec. 263. 2 Story's Eq., secs. 769, 776. 2 Sch. & Lef., 553, Harnett vs. Yielding. 1 G. & J., 227, Tiernan vs. Poor. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb.

4th. Because the appellants, if entitled to any relief against the appellees, could have full, complete and adequate remedy by a suit at law, nor are they entitled to relief in equity as incident to the discovery they seek, nor,  [**29]  in fine, do they show by their bill any right to such discovery. 2 Story's Eq., secs. 718, 746, 1503. 1 Do., secs. 72, 74. 11 G. & J., 444, Oliver vs. Palmer & Hamilton.

5th. Because if a decree for specific performance be denied, the bill should not be retained for compensation, but the complainants should be remitted to their remedy at law. 2 Story's Eq., secs. 796, 797, 798. 4 Johns. Ch. Rep., 559, Hatch vs. Cobb. 1 Sch. & Lef., 25, Lawrenson vs. Butler. Again, the decree passed in this case was conditional. It dismissed the bill as against all the defendants except Gray, and retained it as to him, only upon condition that the original agreement was filed to be cancelled. This the complainants refused to do. They filed the agreement, but with a protest as to the effect of such filing. This was not an unconditional compliance with the condition upon which the bill was to be retained.  

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

OPINIONBY:
TUCK 

OPINION:

 [*298]  TUCK, J., delivered the opinion of this court.
We have considered this case with every disposition to grant to the complainants the benefit of the agreement which they seek to have performed. Having, in good [**30]  faith, paid $ 10,000 in part execution on their side, it is reasonable and just that the other party should comply on his part, if such relief can be enforced consistently with established rules of equity. But we have not been able to discover such stipulations in the agreement as exempt it from the operation of the principles laid down in the cases of Geiger vs. Green, 4 Gill 472, and Tyson vs. Watts, 7 Gill 124. The chief difference between them is, that here there was a substantial price advanced by the complainants, whereas no such consideration was paid by the parties claiming execution of the contracts in the two cases referred to. That circumstance, however, cannot vary the construction of the instrument, or supply essentials in which it may be deficient, although it is entitled to weight in the final disposition of the case.
The learned judge below has very clearly shown the similarity between these cases, and indicated the particulars wherein the contract, now under consideration, is defective in qualities entitling the complainants to a specific performance. And, concurring with him, that it is not such an one as the parties can [**31]  call upon a court of equity to execute, we are relieved from the necessity of inquiring whether the bill was filed within a reasonable time, and contains a sufficient offer, by the appellants, to execute the contract on their part.
The appellees insist, that the decree is erroneous in so far 

 [*299]  as it makes provision for compensation to the complainants as to the amount paid by them to Gray; and that, if correct in this respect, the appellants did not comply with the condition of the decree by an unqualified submission to its terms. As to the first objection it may be observed, that the defendants have not appealed, and cannot complain here of this provision in the decree, yet the complainants may, if, being entitled to compensation, the decree does not go far enough in that behalf; and, as to the second, that the terms imposed on the complainants did not take away their right of appeal. The bill was dismissed as to the material relief sought, and under their appeal the complainants may claim a reversal or modification of the decree to suit the equity of the case, and if they had filed the original agreement, without any protest whatever, the appeal might have been prosecuted.  [**32]  This part of the decree, we suppose, was not designed to cut off the appeal, but merely to secure the defendant, Gray, against another litigation on the same cause of action, after the complainants had accepted compensation in this case.
We must remember that the record is before us on demurrer which admits the case made by the bill, averring that, though true, it constitutes no ground for relief.  Carroll vs. Waring, 3 G. & J. 491. 3 Bland, 135. If it be true, as we must assume, that these parties were prevented from availing of the profits of their agreement by the fraudulent contrivances of the defendant Gray, in transferring large portions or shares of this property to others, in the manner stated in the bill, it would be a great failure of justice to discharge him altogether from performing the contract, without any compensation to them for the large amount advanced; especially as he has not defended the case on the merits, and offered to show that the complainants have suffered, if at all, by their own unreasonable delay, which, we may remark, is the only default imputed to them. The decree allowed him the benefit of the demurrer, as well [**33]  as of an answer, to be filed, litigating the question of compensation. We think, in such a case, a party should be held to the confession made by his pleading, and that, having received the price agreed to be advanced on the contract, he should 

 [*300]  comply or refund the money. If, waiving special defences, the defendants had contested the bill on the merits, the case might have been governed by principles applicable to a state of facts, not appearing on this record, showing that the complainants were not entitled to any relief.
We are aware that the power to grant compensation is not exercised in all cases of bills for specific performance; but, that such jurisdiction exists, we have no doubt, though it should be exercised "under special circumstances, and upon peculiar equities; as, for instance, in cases of fraud; or where the party has disabled himself by matters ex post facto, from a specific performance; or where there is no adequate remedy at law." (2 Story's Eq., 796, 797, 798, 799,) and it has been granted in cases for the transfer of stock. ( Forrest vs. Elwes, 4 Ves. 493. Cud vs. Rutter, 1 Peere Wms. 572, 'notes,  [**34]  ') in which class of contracts specific performance is not generally decreed. The mode of ascertaining the compensation is not uniform. In some cases it has been by an issue quantum damnificatus; in others, by reference to the Master. But where, as here, the case is confessed, and no defence set up, we perceive no necessity for an inquiry on the point. The measure ought to be the amount paid with interest. This principle was acted upon in 1 Peere Wms. 572, note, and 4 Ves. 497. In the latter case it was said, by the Master of the Rolls, to be a moderate compensation for a breach of contract, by a party with his eyes open, to give back the money with interest; that a jury could not adopt a better rule. And in the case of Pratt vs. Law, 9 Cranch 456, the court said: "An issue quantum damnificatus is certainly competent to the court to order in this case; but it is not consistent with the equity practice to order it in any case in which the court can lay hold of a simple, equitable, and precise rule, to ascertain the amount which it ought to decree." Accordingly, the party was required to refund, with interest, at the [**35]  rate of the original purchase, for the quantity of land as to which performance could not be decreed. It is shown by the bill, that the defendants, other than Gray, have paid but a small, if any, portion, of the consideration agreed to be paid by them to Gray, and that he has still a large 

 [*301]  interest in the property, or in reserved stock of the company. Without deciding how far the interests of the other parties can, under the case made by the pleadings, be made answerable for the advance by the complainants to Gray, we are of opinion that his entire interest should be held as security for the repayment, with interest from the date of the agreement, and shall remand the cause under the act of 1832, ch. 302, sec. 6, that a decree may be passed accordingly: as to the specific performance the prayer of the bill will be denied.
Cause remanded. 

24 of 31 DOCUMENTS 

GREENBURY B. WILSON vs. THOMAS B. WATTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 356; 1856 Md. LEXIS 31 

DECEMBER, 1856, Decided 

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

Watts, the appellee, on the 21st of October 1843, mortgaged a tract of land in Baltimore county, called "The Bare Hill Farm," containing about ninety-three acres, to Johnzee Hook, to secure a debt of $ 1657.67. The mortgage was executed under the act of 1826, ch. 192, under the provisions of which the mortgagee gave a power of attorney, to sell the property, to Samuel H. Taggart, Esq., who filed his bond in Baltimore county court, sitting in equity, which was duly approved by that court, and advertised the property for sale on the 23rd of April 1846, but afterwards withdrew it. On the 27th of April 1846, Watts filed a petition in that court, stating, that he "had contracted to sell the said mortgaged property unto Greenbury B. Wilson, of the city of Baltimore, for the sum of $ 2100, payable in cash on the day of sale;" that he had requested Taggart to report this sale, but the latter had refused to do so; and praying for an order directing the sale to be reported. This petition was signed by Watts and filed by T. P. Scott as his solicitor. Annexed to it was an admission of the facts therein stated, so far as he was concerned, signed [**2]  by Wilson. Objections were made to this order by Taggart and Isaac Tyson, Jr., the latter of whom claimed an interest in the property and mortgage. Subsequently, on the 17th of November 1849, these objections were withdrawn, the cause submitted without argument, by Scott as solicitor for Watts and Wilson, and by Taggart as trustee and solicitor for Hook, the order to report the sale passed, the sale reported, a written assent to its immediate ratification signed by Wilson and Watts filed, and the sale finally ratified by order of court passed the 20th of November 1849, on which day Taggart executed a deed to Wilson for the whole mortgaged property, the purchase money ($ 2100) having been paid by him. The auditor subsequently stated an account, distributing the proceeds to the payment of the mortgage debt, interest, costs and commissions, and the balance ($ 15.66) to Watts, which was finally ratified by the court.

The object of the present suit, instituted by Watts, is to obtain relief against the contract set forth in the above petition, and the proceedings consequent thereon, and against the deed from Taggart to Wilson.

The original bill, filed on the 14th of November 1853,  [**3]  after referring to this mortgage, alleges, that in 1838 or 1840, a valuable copper mine was discovered on the property, and leased first to one Petherick, and subsequently to Samuel Davis, for five years, from June 1845, paying a rent to complainant of $ 2 per ton for the ore dug therefrom; that this discovery becoming public, Wilson came out from Baltimore, called upon complainant, became known to him, and desired to obtain, by some means, an interest in the mine, and requested complainant to get Davis to alter his lease, and that he would join in partnership with Davis and complainant, furnish the money and divide the profits, but Davis refused, and afterwards sold one-half his leasehold interest to Tyson; that the mortgage debt being now due, complainant being poor, had frequent interviews with Tyson for the sale of his interest in the property to pay the debt, during which interviews Wilson frequently came to him and dissuaded him from making a bargain with Tyson; that Taggart had now advertised the property, the day of sale was fast approaching, complainant greatly distressed, and Wilson, by frequent interviews and conversations, had acquired great influence over his mind, and [**4]  complainant consequently placed great confidence in Wilson, and believed him to be his best and only friend; that in consequence thereof complainant agreed with Wilson, that if he would pay the mortgage complainant would give him one-half interest in the mineral interest of the mine; that Wilson then called upon Taggart and offered to pay the debt by giving his note, which Taggart declined to accept, or to stop the sale; that Wilson then confidentially agreed with complainant to buy in the property on the day of sale, but Tyson hearing of Wilson's intention to buy, induced Taggart to stop the sale; that Tyson had paid a large portion of the mortgage, received an assignment of it from Hook, and was anxious to get possession of the mine, but Wilson was anxious to prevent him, and for this purpose, and to carry out the private agreement between Wilson and complainant, and to give him the mortgage debt only, complainant signed the petition above referred to for this purpose only, and not to give Wilson any greater estate in the property than the mortgage debt, until other conveyances were made accurately defining and limiting his right and interest in the mine, which petition was drawn [**5]  by T. P. Scott, who was Wilson's counsel at the time, and paid by him; that complainant had been offered, by various persons, much more for one-half his interest in the mine than Wilson had agreed to pay the mortgage for, but reposing great confidence in Wilson's friendship and advice, he had refused the same; that complainant now became involved in a law suit with Tyson in reference to the property, and was very much distressed by it and his embarrassed circumstances; that Wilson, about this time, said he would defend that suit and must appear as owner, and complainant gave him, at his request, all papers relating to the suit and muniments of title relating to the property; that Wilson then said complainant must give him an assignment of the mortgage and he would then settle with Taggart forthwith, and complainant must then give him a deed for one-half the mineral right of the mine; that Wilson engaged T. P. Scott to defend the suit, and complainant, at Scott's office, executed what he supposed was an assignment of the mortgage debt according to this agreement, which Wilson subsequently said must be kept secret, and the written agreement would be, and was finally, destroyed; that [**6]  complainant received from Wilson during these events frequent letters, expressing deep interest in the result of the law-suit and in complainant's distressed condition, and inspired complainant thereby with great hope and trust in Wilson's friendship; that after the arrangement for destroying the above agreement had been made, Wilson said that agreement did not suit him, and before he could pay the mortgage complainant must give him another agreement; that still reposing great confidence in Wilson complainant signed another agreement, marked J, dated 15th of February 1849, drawn by Wilson, as follows:

"Thos. B. Watts and his wife, Mary Ann Watts, has sold to Greenbury B. Wilson one-half of the farm he now occupies on Bare Hill, call'd Bare Hill, cont'g 93 1/3 acres, more or less, together with the entire controul and privilege of mining for copper and other minerals, and carrying away on the whole tract, forever, with the understanding that one-half of the nett proceeds of all minerals are to be paid over to said Thos. B. Watts, and his heirs and assigns; the said Thos. B. Watts, his heirs and assigns, to have the exclusive benefit of all crops rais'd by him on said farm.

Baltimore,  [**7]  15th Feb'y 1849.

(Signed,)   THOS. B. WATTS,

G. B. WILSON.

In the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to the mutual benefit and advantage of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns.

Witness this 15th February 1849.

A. CLIFTON."

That Wilson did not pay the mortgage debt until sometime subsequent to this agreement, and in consequence thereof the property was again advertised for sale about the month of November 1849, very much to complainant's surprise and disappointment; that in that month complainant received a letter from Wilson, dated 22nd of November 1849, (letter K,) stating that "the business of the mortgage has been settled and paid off to-day"--"we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement." That complainant then came to town and told Wilson his wife was sick and could not come, but if Wilson would draw up a deed his wife would sign it in the country, to which Wilson assented, but no deed was ever [**8]  sent out by him; that Wilson subsequently told complainant that he had determined to charter the mine, and he and complainant could settle then; that though subscriptions for a stock company were obtained Wilson refused to form it, and did not accordingly settle with complainant.

The bill further alleges, that previous to June 1850, Wilson purchased out the leasehold interest of Davis and Tyson, (which interest expired at that date,) and took possession of the mine under agreement J, and has taken all the profits of it to his own use, the complainant remaining, however, in possession and tillage of the soil under said agreement; that complainant, according to this contract, was entitled to one-half the net profits of the mine, and was thereby made a partner with Wilson in its productions, but Wilson has rendered complainant no account of the same in any way whatever; that no deed to him has ever been made by complainant and wife, and that complainant, by no act or arrangement whatsoever, in law or fact, ever intended to give him the legal title to and control of the mine except by deed, in accordance with agreement J; that all petitions, confessions and admissions in the mortgage [**9]  case of Hook vs. Watts, were filed and made with the only design, expressed and understood between Wilson and complainant, of carrying out said contract, paying the mortgage debt, assigning the same only to Wilson, and of removing objections made thereto by Tyson; that Wilson, in a letter to complainant, dated November 7th, 1849, stated that he would not pay the mortgage debt till the "Lion's paws" (meaning Tyson) "are entirely clear of the transaction;" that the property was not bought by Wilson at public sale according to the act of 1826, ch. 192, but the sale from Taggart to him was made by virtue of a private agreement between Wilson and complainant, and for the purpose above mentioned simply; that Wilson, pending these proceedings in the mortgage case, and subsequently thereto, did not claim an entire legal title in the mine, and has, in letters and conversations, admitted an interest in complainant; that any such claim, by virtue of the deed from Taggart, would be contrary to agreement J, and that Wilson has received from the proceeds of the mine more than enough to pay the mortgage debt, interest and costs.

The bill then prays for an account of the net profits of the mine,  [**10]  and after deducting the money paid Taggart, and reasonable costs and charges, that Wilson may be required to deed back to complainant the property, or such an interest therein as, by agreement J, complainant is justly entitled to, and for general relief.

The contents of the letters from Wilson to Watts, dated at various periods between the 22nd of October 1846, and the 15th of January 1852, referred to in the bill and filed as exhibits with it, are sufficiently stated in the opinion of the court below and of ECCLESTON, J. Letter K, dated 22nd of November 1849, is in Wilson's handwriting, but is not signed by him.

The answer avers, that defendant's knowledge of the mine was chiefly obtained through the representations of Watts, who first used it as an inducement to persuade respondent to buy the Bare Hill farm, representing the mine to him in a favorable light and soliciting him to buy the premises; denies that respondent requested Watts to get Davis to alter his lease, and offered to enter into partnership as stated in the bill; admits that Davis sold one-half his leasehold interest to Tyson, but knows nothing of any interviews of Watts with Tyson for a sale of the property;  [**11]  admits, that in consequence of the frequent importunities of Watts, he agreed to give his notes for the mortgage debt due to Hook, who had become dissatisfied with the security afforded by the property, which notes Taggart declined and advertised the property for sale; that respondent is not aware he had any influence over the mind of Watts, and solemnly denies that he used, or attempted to use, any fraudulent or improper means to acquire any influence or control over him in any matter; denies that he ever agreed to pay the mortgage debt for one half interest in the property, and avers, that at the time he agreed to purchase the farm, there was an unexpired lease to Davis of the mineral portion of it, and a suit was about to be instituted, or was pending, in chancery, in regard to Petherick's lease; admits that Hook assigned part of the mortgage to Tyson, but does not know that Tyson was, at this time, anxious to get possession of the property, but was subsequently informed by Tyson, that when he worked the mines with Davis he lost money by the operation; denies that he ever interfered with the sale of the property, except as particularly requested by Watts, and in accordance with [**12]  his directions; and denies, emphatically, that any such private agreement was ever made between him and Watts, as alleged in the bill, or that he ever agreed to purchase the mortgage debt only; nor does he understand how Watts, the mortgagor, could have assigned the mortgage debt; denies that any such written agreement between him and Watts ever existed, or was destroyed, as alleged in the bill, and that the only written agreement between them, in relation to the purchase of the property, which has been mutilated or destroyed by having the name of Watts cut or torn therefrom, is the following, marked No. 1:

"It is hereby agreed and bargained, this 25th day of April 1846, between Thomas B. Watts and Greenbury B. Wilson, that the said Thomas B. Watts sells to the said G. B. Wilson all those tracts of land bordering on Bare Hills, under the order of Balto. county court surveyed and laid out for ninety-three acres, with all the improvements, rights and privileges of mining for any kinds of ore or minerals, with the right of his mother's life estate therein, also to be conveyed to said Wilson, to have and to hold to the said Greenbury B. Wilson, his heirs and assigns, in fee, forever;  [**13]  the said Thomas B. Watts binding himself and his heirs and assigns, to carry out and execute any deed or deeds, or instrument of writing, to the said Wilson, his heirs and assigns, in fee, and clear of all incumbrances, on the payment of the sum of money due under mortgage to Johnzee Hook, and on payment of said mortgage and a full and clear title of said lands to the said G. B. Wilson, his heirs and assigns.

(Mutilated.)

Witness:--Luther Wilson."

That this paper states, fully and truly, the agreement between them, was fairly made and executed, and was finally consummated by the deed from Taggart; that Watts agreed to sell him the property upon the terms set out in the petition filed in the mortgage case of Hook vs. Watts; admits that Scott acted as his attorney at that time, and was paid by him, but denies that he or his attorney practiced any fraud or imposition upon Watts in the matter of this petition, and respondent refers to the same and all the proceedings in the mortgage case, and to the deed from Taggart, to vindicate his title to the property, and relies upon and pleads the same in bar to the relief sought by the bill; denies that he ever entered into any agreement [**14]  with Watts by which he was not to have any more or greater estate in the property than the mortgage debt only, until other conveyances were made, defining and limiting his rights in the mine; that he is not aware that Watts was offered, before respondent's purchase, a sum sufficient to pay off the mortgage, for up to the time of his purchase a great deal of litigation had been pending in regard to the property: the lease to Petherick had been the source of protracted contention, the life estate of Watts' mother had been an incumbrance, the lease to Davis, and his assignment of half to Tyson, had not expired, the fact publicly alleged by Tyson, that he had lost money in his mining operations with Davis, and the sterility of the land for agricultural purposes, had operated to make a sale of it for enough to pay the mortgage a matter of uncertainty at the time respondent purchased; admits the authenticity of the letters filed with the bill, but submits that they evidence no such private contract or secret agreement, as is alleged in the bill; denies that agreement J ever went into effect, because from its date to that of Taggart's deed, Davis held possession of the property, so far as [**15]  related to the mine, against respondent and his own release; no nett profits, therefore, could be realized under agreement J, and no work was done in the mine under it, but considerable expenses were paid by respondent for counsel fees and legal proceedings against Davis, which finally resulted in securing respondent in lawful possession of the property in July 1850, after the date of Taggart's deed, in which he submits agreement J was merged and determined; and respondent, by way of answer, relies and insists upon the statute of frauds and perjuries as a bar to the relief sought by the bill, and as an answer to any alleged agreement or contract touching this land: admits that he has rendered no account to Watts of the profits or expenses of his mining operations since he became the absolute purchaser of the property, and it was not until respondent, relying upon his title, had expended large sums in preparing the mine for work, that the unfounded pretentions of Watts were made known; denies there was any secret agreement between him and Watts in regard to the mortgage deed, and avers, that the petition and proceedings in the mortgage suit contain a true statement of the facts and [**16]  circumstances attending the purchase, all which proceedings were duly considered and the sale finally ratified by the court; denies any partnership or joint ownership, but admits that Watts has remained on the land, by his consent, for tillage and farming, and has boarded some of his miners at various times, for which he has individually received compensation from respondent, according to their mutual agreement, together with the use of the farm as aforesaid; admits that at one time he did propose to raise a company to work the mine, but after many months the person employed being unable to raise the necessary amount of subscriptions he withdrew his offer; insists that Watts cannot ask the court to set aside respondent's title upon the hypothesis that he and his wife agreed to give an additional deed for one-half of the property, which they never executed; that nothing in the letters, or any other exhibits filed with the bill, can impair his title; that the purchase was fairly made, fully assented to by Watts, executed bona fide by Taggart, and finally ratified by the court; that confiding in his title thus solemnly authenticated, he has expended a vast amount of labor, skill, and [**17]  capital at his own risk, with a view to his own advantage if he should make a profitable discovery, and to his own loss if he did not, and he, therefore, submits, that the unfounded pretensions of the complainant cannot prevail.

The proof in the case taken under the commission consists of various written exhibits including those filed with the bill and answer, and the oral testimony of witnesses. Among the exhibits filed by the defendant is the following, marked P, dated June 1st 1849.

"All my right, title and interest in the Bare Hill copper mines, and the houses and improvements appertenant thereto, during the term of five years from the tenth day of July 1845, with right of reversion and possession thereof, as secured to me, I hereby assign and transfer to G. B. Wilson for value received.

THOS. B. WATTS,   (Seal.)"

This paper was admitted to be in the handwriting of Watts, both the body and signature, and is identical with complainant's exhibit AWB, also signed by Watts, but the body of which is in the handwriting of Wilson.

After these papers were filed under the commission, the complainant filed a bill of discovery, alleging: that paper P was obtained [**18]  from him merely for the purpose of being used by Wilson in a suit then pending between Wilson and Davis, relative to the possession of the mine, and also with the express promise that he wanted and would use it for no other purpose, and that it was given simply to aid him in getting possession of the mine from Davis by purchase of the unexpired term of Davis' lease: that the petition in the mortgage case referred to, and made part of his answer, Wilson obtained from him, with the express promise and understanding that it was necessary to enable him (Wilson) to defend complainant against the claims of Tyson, and that Wilson also stated to complainant's wife and to him, that this petition was intended merely as a matter of form. The bill then prays for an answer, under oath, to the following specific interrogatories:

1st. Did you not bring out and present to Watts, at his house on Bare Hill farm, paper AWB, and ask him to sign it?

2nd. Did you not then say to him, after he signed it, that he had better write a paper in his own handwriting like said paper, and did not Watts accordingly write for you paper P?

3rd. Did you not state to Watts at the signing and writing of [**19]  paper P, that you wanted it at the trial then coming on between you and Davis, and for no other purpose, or words to that effect?

4th. Did not Watts sign paper P, a few days before the trial came on between you and Davis, at the Bare Hill copper mines?

5th. Did you give Watts any money or other consideration for these papers at the signing thereof, if so how much and what, and did you take from him any receipt therefor?

6th. Did not E. J. Kilbourn, as your counsel, present said paper at the subsequent trial between you and Davis?

7th. Did you ever have any conversation with the wife of Watts about the petition filed against Taggart, referred to in your answer?

8th. Did you ever say to her that you heard she was dissatisfied about said petition, and that she need not be uneasy, that it was a mere matter of form, and was necessary to enable you to defend her husband against Tyson; but if she was dissatisfied you would throw it up and let Tyson take it, and that you expected to make a little money for yourself and a great deal for Watts, or any words to that effect?

9th. Did you not State to Watts at the signing of said petition, that it was a matter of form [**20]  only, and that you wanted it merely to carry on the suit with Tyson?

Wilson, in his answer to this bill, denies that paper P was obtained merely for the purpose alleged in the bill, or that he ever made any express promise that he would use it for no other purpose: denies, moreover, that it was given simply to aid him in getting possession of the mine from Davis, as alleged in the bill, but avers that it was duly executed for the purpose of giving him evidence of the absolute purchase, which he had before that date made in good faith of the Bare Hill farm and copper mine of Watts, which evidence he truly stated to Watts he wanted to use at a trial then about to take place between him and Davis in regard to the possession of the mine, because his deed thereto was not then executed by Taggart. He denies that there was any other understanding or promise by him in regard to the petition in the mortgage case than that which appears from its terms. He then answers the specific interrogatories as follows:

To the 1st, that he did present to Watts paper AWB, and asked him to sign it as evidence of his sale to respondent of the farm and mine, so that he might use it at the approaching [**21]  trial between himself and Davis, because the deed from Taggart was not then executed.

To the 2nd, that he never saw Watts sign said paper, nor did he know, until very recently, that his name was attached to it, but that Watts some time after the request made by respondent, as above stated, delivered to him paper P, which he stated was in own handwriting, signature and seal.

To the 3rd, that he did state to Watts before he wrote and signed paper P, that he wanted to use it at the trial then coming on between him and Davis, but never said he wanted it for no other purpose, nor did he use words to that effect.

To the 4th, that he believes Watts did write and execute paper P, a few days before the trial between himself and Davis at the mine.

To the 5th, that he paid no money consideration at the time of signing paper P, as the greater part of the consideration or purchase money for the farm and mine had been stipulated by Watts and respondent to be paid to Taggart, which respondent did subsequently pay in good faith according to his agreement.

To the 6th, that Kilbourn, his counsel, did present paper P, at the trial between himself and Davis, and used the same [**22]  in presence of Watts as evidence in the case.

To the 7th and 8th, that he never did converse with Watts' wife about the petition in any respect.

To the 9th, that he never did state to Watts at the time of signing the petition, that it was a matter of form only, and that he wanted it merely to carry on the suit with Tyson, a matter he never would have entered into if he had not purchased the property.

Oral testimony was then taken, in substance as follows: Samuel Davis testified that he rented the mines from Watts for five years, and was to pay $ 2 per ton for the ore raised by him; that he worked the mine jointly with Tyson for three years and a half, and took out in that time between six and seven hundred tons of ore which yielded on the average $ 54 per ton; that the gross amount of sales was, to the best of his recollection, $ 21,000 or $ 22,000; that he met with Wilson, who proposed to witness to carry on the mine jointly, each to have an equal share of the profits and to bear equally the expenses, and said if witness would accede to this proposition Watts would extend his lease; that Watts' means were limited in April 1846, that he stood in need of money and that [**23]  his property was offered for sale in the papers by Taggart, to satisfy a mortgage, as witness heard; that Wilson represented himself to witness as the friend of Watts, this was about April 1846, that Wilson said he felt a disposition to befriend Watts to prevent him from being cheated or defrauded by Tyson; witness does not recollect that he said anything more on that occasion; that Wilson stated to witness that he had offered to pay a certain sum or sums of money due Hook by Watts, this was in the year 1846, but he does not recollect the month; that he sold one-half his lease to Tyson in Sept. 1845, and received $ 1000 in cash, and was to receive, in addition, $ 4000, if it could be got out of the mines clear of expenses, that he did not receive the whole $ 4000, sometimes the mines were paying and sometimes not; that Tyson evinced a desire to become the owner of the mines or to purchase them; that Wilson and witness had frequent conversations in reference to Tyson's wishing to become the owner of the mines, and that Wilson said Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names; that he is familiar [**24]  with the value of copper mines, and that in April 1846 these mines were worth $ 6000, and witness thinks would have brought that sum at public auction; that in the Spring of 1850, the mines were not in working order having considerable water in them, which witness thinks could have been taken out for $ 200 with the use of the machinery that was there.

On cross-examination this witness proved, that an injunction was issued against him at suit of Wilson to restrain him from working these mines, and that he was arrested for contempt of this process in the fall of 1849, as he thinks; that he received somewhere about $ 1200 net profits from working these mines; that he worked them on his own account from the 10th of July to the 18th of Sept. 1845, and from that time jointly with Tyson, till early in 1849, and then undertook to work them about a month and ceased, and that he was not able to pay his debts at the close of his lease; that Watts, as a justice of the peace of Baltimore county, issued a warrant against him at the suit of Wilson, in a plea of trespass for entering upon the premises where the mines are situated and hindering his hands in the performance of their labor; that [**25]  he always understood that Tyson sold to Wilson his interest in the mines.

Johnzee Hook testified that he loaned Watts the sum of money mentioned in the mortgage to him, that he always considered the farm security enough for it, and was not dissatisfied therewith but wanted the interest of his money to use; that while Watts occupied the farm it was twice offered for sale by Taggart, as trustee, under this mortgage, but it was not sold at public auction; that in 1846, he believes, witness saw Wilson at his, deponent's brother's house, and took him to be the friend of Watts, that Wilson wanted to take up the claim against Watts' property and of course witness took him to be the friend of Watts; that Watts was poor at that time as far as witness knew; that Wilson offered to take up the mortgage by giving his notes; that since February 1849, Watts has worked the farm, lived on it, and still lives there; that in April 1846, the farm was worth a good deal more than the mortgage debt, and he would have been willing to give more for it, and that it was much more valuable in 1849; that he knows of no other support that Watts has for himself and family except this farm; that he thought Watts [**26]  had a good deal of confidence in Wilson as a friend, that is he heard so; and witness took Wilson to be his friend when he came over to deponent's brother's house, and from what he saw on that day, he thought Watts placed confidence in him; the way deponent took him to be Watts' friend was, that Wilson was to take the debt of Watts on himself; that the soil of the farm is poor, but he thinks part of it is tolerably easy of improvement.

On cross-examination he proved, that he agreed to take Wilson's notes for the mortgage, but they were not given because his counsel Taggart would not accept them; that Watts has made very small crops on the farm but he does not know the value of them; that Watts has boarded a few hands working at the mines, how many he does not know, sometimes more sometimes less.

Thomas Mitchell, who had worked at the mines, testified, that in June 1849, to the best of his knowledge, he had a conversation with Wilson in the presence and hearing of Watts in relation to deponent's employment at the mines, in which Wilson proposed that deponent should go there to take charge of the mine under Watts and himself, for he said they intended to work it systematically,  [**27]  and to make captain of deponent; that deponent never did anything else, as a business, but work at copper mines, and he ought to be acquainted with their value, and that these mines in the fall and summer of 1849 ought to have brought, at public auction, $ 10,000 at the least calculation.

Samuel H. Taggart, in whose hands Hook placed the mortgage for foreclosure, testified, that he twice advertised the property for sale; that as well as he can recollect, after the first or second advertisement, Wilson called at deponent's office, as he understood, as the friend of Watts, and stated that he had not the money, but offered his notes for the whole amount of the debt, which deponent declined taking; that Tyson paid deponent about $ 800 on the mortgage after the property was advertised, which fact was known to Wilson; that when called on to make a deed to Wilson for the farm he refused to do so without the order of the court, being a trustee and being under the impression that had he executed the deed he would not have been protected against Watts and his wife; that he had not seen Watts on the subject and does not know whether Watts knew that this deed was to operate as a mortgage [**28]  or as an absolute conveyance, neither did he see Wilson about the deed, but whatever was said to witness was through Mr. Scott, Wilson's counsel, who paid witness the whole amount of the mortgage debt, and that Watts was not present when the deed was executed. On cross-examination he stated, that he reported the sale to Wilson because there was a petition filed by some one, but whom he cannot recollect, and an order of court requiring him to do so, and that Tyson interposed a claim which was a matter of controversy in court a considerable time.

Isaac Tyson, Jr., bought from Davis one half-interest in a lease from Watts of the mine for five years, upon the terms stated in the testimony of Davis; that he worked the mine with Davis for upwards of three years, and raised 445 tons of ore which brought $ 20,000; but he never considered the mines well worked; that Watts and Wilson called together at witness's counting room, as well as his recollection serves him, and Wilson appeared to be the friend and counsellor of Watts, witness so considered him at the time; when they came they offered the mines to witness and wanted to know what he would give for them; the property offered was that [**29]  part of the farm where the mines were which had been leased to Davis: witness does not recollect whether they made any distinct offer to him or whether he made them an offer; that about the same time witness learnt that $ 3000 would be taken for the mines, and that part of the land leased to Davis, sixteen acres; that he sent out Farquharson to negotiate the matter and authorised him to give the $ 3000 for the mines, and even to go higher for them; that while interested in the mine witness bought of Buchanan some adjoining land which he considered necessary should he acquire a permanent interest in the mine, and for which he paid $ 6000, and when he sold to Wilson, he sold this land with his interest for the unexpired term of the lease, about one year, for $ 8000; that at this time witness believes the farm in fee would have commanded very readily $ 10,000. On cross-examination he stated he did not know the expense of raising the ore, but the upshot of the business was that the expenses eat up all that was received from the sale of the ore, and there was no profit at all made, but he always supposed the loss was owing to the imperfect mode of working the mines.

James Farquharson [**30]  was employed in 1846, he thinks, by Davis and Tyson, to negotiate the purchase of the mines from Watts, and his mother who had a life estate in them; that he went out to the mines, and had three or four interviews with Watts endeavoring to get him to name a low price for them; that Watts said he would take $ 3000 for the mineral right reserving to himself one fifteenth of the ore raised, and the dwelling house and a few acres of land attached to it were not to be included; that witness advised Tyson to accept this offer but he declined, saying Watts would be forced to take less; that a few days afterwards Tyson came to witness much excited and told him to go at once to Watts and offer an advance of, he thinks, $ 1000 on Watts' proposition, and if these figures failed, to see what the property could be had for; that witness went forthwith to Watts but found him indisposed to talk; that he made Watts the offer authorised but he declined every thing, saying, it was too late, that he had made other arrangements; this was in the spring or summer of 1846, and that Tyson was exceedingly anxious to get hold of the property.

Lydia T. Watts, a daughter of the complainant, testified that [**31]  in the spring of 1846, she was present at a conversation between Wilson and Mrs. Watts, her mother, in which Wilson said that he had heard that Mrs. Watts was dissatisfied; he said if she was not satisfied he would throw up the law suit, give it back to the lawyer's hands, and let Tyson take it, if she was satisfied he would do a good part by her as he expected to make a good deal of money for Watts and some for himself; that Wilson was frequently at the house of Watts, two or three times a week, and every Sunday; that Watts placed confidence in Wilson at the time, as his friend.

David Stewart testified, that Tyson desired deponent to ascertain from Watts his disposition as to the sale of the mineral land of Bare Hill; that Tyson stated there was a suit then pending, and that he had been informed that deponent had a friendly influence over Watts, and he thought that through deponent's agency some arrangement might be made for their mutual benefit; the result of the interview with Tyson was, that deponent addressed Watts a letter, dated February 7th, 1846, but which he believes was written and sent in February 1847, in which belief he is confirmed by date of the second letter,  [**32]  July 9th, 1847. Deponent has a recollection that it all occurred in 1847. (These letters express the writer's wish to see Watts in regard to the mineral lands of Bare Hill;) deponent did not hear from Watts, either verbally or in writing, in response to either of these letters, but after the first or second letter, and he believes after the second, but cannot affirm this positively, Wilson came to deponent's office and represented that he had come, at the request of Watts, and in consequence of deponent's having written to him, (Watts,) and requested to know the object of the proposed interview with Watts. Deponent told him he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Tyson and Watts, in regard to the mineral lands of Bare Hill; Wilson said that no such arrangement could be made with Tyson, that Tyson wanted to take advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition; Wilson spoke of said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his agreeing with Tyson for them [**33]  at anything like a fair value; deponent stated to Wilson, that his agency was a friendly and not a professional one, and there the interview closed.

John T. Watts, a son of the complainant, testified, that as well as he can remember, about sixteen months ago, Wilson spoke to deponent about leaving home, (it was soon after deponent had left home,) and said deponent was doing very wrong in leaving his father as he had done, that the business was then about to be settled between Tyson, Davis, himself (Wilson) and deponent's father, and he thought then they would be able to realize something right handsome from the copper mines, and said he saw no necessity at all for deponent's leaving home; that Wilson was very often at the house of Watts in the spring of 1846, and after that time; that in the spring of 1846, his father was very scarce of money indeed, and also after that time; that the little money his father got was from the produce of the farm and from the mines; the money from the mines was paid to him by Wilson:

Michael O'Donnell, a laborer who had worked at the mines, testified, that in the spring of 1850, Wilson asked him if Mrs. Watts was not dissatisfied? deponent [**34]  told him he did not know; he then said she had some advisers who had advised her not to sign over her right and title to the place to him, and he told deponent to tell her not to be dissatisfied, that he would make a little money for himself and her too, and if that would not satisfy her, as to the writing that was between him and her husband, it was not of much consequence, for when the law suit between him and Tyson was over, he would give them up again, and if that would not satisfy her he would throw the law suit up to the counsel and let Tyson take the place to himself.

Ferdinand Welsh testified, that he always considered Watts a poor man; that he cannot refer particularly to the spring of 1846, but always regarded him as a working man for his living.

Robert Wilson proved, that he met Wilson at the house of Watts frequently from 1846 to 1850; that in 1846 or 1847, Wilson stated to deponent, in the presence of Watts, that he was the friend of Watts, and that he would merely undertake this thing to get him out of the clutches of Tyson and Davis; he said they were both trying to rob him (Watts) out of his house and home; that deponent had similar conversations with Wilson,  [**35]  at his (Wilson's) office, at the farm and at the mine; that Wilson said to deponent, in the presence and hearing of Watts, that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Watts, that it would turn out to be a fortune to him; he also said, if he was Watts he would not let Tyson have it for any consideration; this conversation occurred in 1846 or 1847, and before the law suit between Watts and Tyson was commenced; that Wilson told deponent, that when Watts gained the law suit against Tyson, it was his (Wilson's) intention to put it into a stock company, putting the capital stock up to about $ 100,000, and that they (Watts and Wilson) would retain either $ 15,000 or $ 25,000 a piece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect, or this was what deponent implied from his conversation--that was what he said; this conversation occurred between 1846 and 1847; that Watts was quite poor in April 1846, and has been so ever since.

George W. Waters and David Keener proved the amount of ore sold by Wilson to the companies [**36]  of which they were clerks and agents, since June 1850; the gross amount of sales was upwards of $ 25,000.

Christian Keener was employed by Wilson for the purpose of raising subscriptions for a stock company to work these mines; the subscribers agreed to pay Wilson, the present proprietor of the property, $ 20,000 in money and $ 25,000 in stock of the company when organized. Subscriptions were obtained to the amount of $ 60,000; a charter was obtained from the Legislature, and among the names of the corporators are those of Wilson and Watts; that the mines would have sold at auction at any time since deponent's knowledge of them, at from $ 10,000 to $ 20,000, to the best of his judgment; that he understood, in a conversation with Wilson, that Watts had an interest in the mines; that in the month of October or November, 1851, deponent met Wilson and conversed with him about the formation of the company and deponent's commission, and then said to him, "You don't own all the Bare Hill mines, Watts has an interest of one-half," to which Wilson replied, "He has just such an interest as I please to let him have;" deponent replied, "Not so, I have seen your written agreement as the purchaser [**37]  of one-half only." This was all the conversation he had in reference to Watts' interest; that deponent went to search the records for a deed to Wilson, and met Watts outside, and told him he could find no deed to Wilson; this was in August 1851. That he knows the handwriting of Luther Wilson and has seen him write, and the signature to exhibit No. 1 he thinks is not in the writing of said Luther Wilson, and he bases his belief from the opportunities he has had of knowing his handwriting, and from a comparison of this signature with the signature by Luther Wilson to two receipts which are filed in the case: (these receipts were to bills made out against the witness Keener and signed by Luther Wilson.)

George W. McConkey had been intimately acquainted with Watts for about thirty years, and on being asked, whether he was a man of business or business habits? said, that it depends on the kind of business; deponent would say, if you include business of importance, that Watts is not a man of business habits, if there is any financiering in the business Watts is not a man calculated to transact business of that kind.

On cross-examination he said, Watts had acted as a justice of [**38]  the peace of Baltimore county for several years, he thinks he was re-appointed, but whether he swore in deponent does not know.

Edward Rider has known Watts for many years, and really thinks he is not a man of business and business habits; that Watts' means, since April 1846, and at that time, have been and are very limited. On cross-examination he proved, that Watts can read and write, and he has seen some of his official acts as a magistrate, but he doubts whether he understood what he has written; he has written pieces which deponent thinks he did not understand, he copied them without understanding them; he does not think Watts is a man of ordinary understanding, competent to make contracts; deponent would not trust him to make a contract for him; that Watts has acted as a justice of the peace for Baltimore county, but he does not know how long, and he never thought him fit; he does not know whether he ever acted as a judge of the magistrates' court; he cannot tell exactly the time he acted as a justice, but he saw some of his judgments two or three years ago; he writes a pretty fair hand; does not know whether he is in the habit of doing all his own business or not; thinks [**39]  Watts is in possession of his usual mental faculties; does not know of his ever having been deprived of his mental faculties; he does not know much of Watts' transactions, his buying and selling has been in a very limited way since he has been in deponent's neighborhood; he is a man who is compos mentis, but his business habits are very limited; he does not know, but should judge Watts conducted his business himself.

Richard Hook testified, that in August or September 1849, he had a conversation with Wilson on the subject of the Bare Hill mines, the substance of which was, that Wilson was acting as the friend of Watts; deponent understood him to say, he was the friend of Watts and intended working the mines jointly with him when they got rid of the difficulties then hanging over their heads, referring, as deponent understood, to the suit then pending between Wilson and Davis in reference to the possession of the mines; this is the substance of the conversation as deponent recollects it, the words he does not remember; that he has known Watts some twenty years, and should not judge that he was a man of business and business habits. On cross-examination he said, that Watts was one [**40]  of the associate justices of the district court for the 3rd election district of Baltimore county for a short time; deponent was a justice of the same court, at the same time; Watts sat at said court two or three times, but took no active part in the business of the court; this was in the latter part of 1850 and in 1851; he believes Watts does transact his own business, and should judge he was a man of common sense; deponent never had much business with him; that he writes well and reads, but deponent is not able to say whether he understands what he reads and writes.

George W. White, the only witness examined on the part of the defendant, proves, that he first became acquainted with the mines in May 1850, when he was employed by Wilson to take charge of them; when he came to the mines they were partly filled with water, and it was at least seven months before they were cleared; that Wilson's working the mines, at the time he commenced to do so, was a mere experiment, without any visible evidence that they would become profitable; that before the monthly yield was sufficient to pay the monthly expenses Wilson must have been out of pocket at least $ 10,000 for expenses in clearing [**41]  the water out, machinery and other incidental and necessary expenses in working them, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore; that he repeatedly conversed with Davis about the value and working of these mines, and Davis said, that he did not believe that any man could make the mines meet expenses, that they had beggared him, and that he had lost some $ 1200 which he had brought there with him; that he knows Michael O'Donnell, and from his knowledge of his character for veracity, would not believe him on his oath.

On cross-examination he proved, that he called on Wilson for what was wanting at the mines, and Wilson furnished it; and that he called on Watts for nothing; that the real value of the mines, at the time he came, was not one dollar, in his opinion, and that he has stated, a short time since, that he was willing to swear they were not worth $ 5 at the time he went there to work; that he believes Wilson has derived profits from the mines, but he does not know how much.

After the testimony was taken, an amended and supplemental bill was filed, alleging, that agreement J, except the signature of Watts, is all in [**42]  the handwriting of Wilson; that in November 1849, Wilson paid the mortgage debt according to said agreement, and on the same day wrote complainant letter K; that agreement J was wholly drawn by Wilson, and was inequitably drawn by him for the purpose of setting it up or renouncing it, as might be most conducive to the fraudulent and dishonest purpose of cheating and defrauding complainant out of the mine and farm, which are the only means of subsistence to him, now experiencing the infirmities of age, and no longer able, by his personal exertions, to make a living for himself and family; that letter K was written by Wilson for the purpose of deceiving complainant, whom he knew to be easily deceived, and making him believe that no deed had been taken for the farm; that complainant subsequently discovered that Wilson had taken a deed from Taggart in entire fraud of this agreement, and of the confidence and trust reposed in him; that Wilson never told complainant that he had a deed for the farm, but, on the contrary, led him to suppose, by letter K, that no deed had been taken, and kept the same concealed from complainant, who never knew it till informed by his counsel; that at the time [**43]  the mortgage debt of about $ 2100 was paid by Wilson, the mine and farm were worth at least $ 10,000, and at that time nearly $ 20,000 worth of ore had been sold from the mine by Tyson and Davis under their lease; that the mine and farm was not sold at public auction, according to the act of 1826, ch. 192, nor was there any advertisement made of the sale by the trustee according to that act; that reposing great confidence in Wilson, complainant signed the petition in the mortgage case, without benefit of counsel, or reading or knowing its contents or nature; that complainant is not a man of business or business habits, nor is he capable of understanding a paper of that description without the special aid of counsel, which, confiding in Wilson, he deemed unnecessary, nor had he the means of obtaining the same; that in signing that petition, and all other papers referred to by Wilson, and used in any way as exhibits, complainant had not counsel; that Wilson gave him no consideration whatever for signing paper P, nor for any other referred to by Wilson; that during the pendency of the suit between complainant and Tyson, and his other difficulties arising from his extreme poverty, Wilson [**44]  pretended to be acting only as his friend, in saving him from Tyson and his pecuniary troubles, and so stated to various persons; that Wilson has sold more than $ 25,000 of ore from the mines, and has, according to his own statement, made large profits out of the same, infinitely more than enough to pay said mortgage debt, interests and costs, and has refused to account. (The allegations of the bill of discovery are repeated in this amended bill.) The prayer of this bill is for an account under the direction of the court, and for an injunction against Wilson at the final hearing.

The answer to this bill admits, that agreement J is in Wilson's handwriting, but solemnly denies that he wrote it with a view to accomplish any fraudulent purpose upon the complainant, or any other person; denies that this agreement was ever fully executed by the parties named in it, the wife of Watts, one of the parties thereto, never signed or acknowledged it, besides respondent did not get possession of the mine and farm for a year from the date of this paper, and the agreement suggested by it was therefore never completed or executed, and therefore evidences no legal agreement between the parties [**45]  named therein; that whatever legal effect this agreement might have had if the subsequent agreement P had not been executed, yet its force and effect, if any, are entirely merged in agreement P, executed more than three months afterwards, which agreement P, embodying the substance of the original mutilated paper No. 1, was ultimately perfected by the deed from Taggart; that about the 20th of November 1849, he paid the consideration before stipulated to be paid by him as the consideration or purchase money for the property, part of which was applied, as respondent was informed and believes, to the discharge of the mortgage debt, by the direction and request of Watts; that the deed from Taggart was executed in pursuance of the petition of Watts, and in conformity with the final contract stated in paper P; that Watts had able counsel, who filed his petition and acted for him as well as for respondent in the procurement of the deed, according to Watts' directions and authority; that Watts had ample time and opportunity to understand and fully comprehend the transactions by which he passed, and intended to pass, the title of the farm and mine to respondent, upon payment of the purchase [**46]  money as aforesaid; he utterly denies that in the procurement of this title he used or practiced any fraud whatever upon Watts, or made any misrepresentations whatever, and alleges that the purchase was made fairly and bona fide for what was then, in his opinion, a full consideration; that although propositions were made by respondent and Watts in regard to the purchase and working of the mines, yet none has been reduced to a contract except that set forth in Watts' petition, which was affirmed by paper P and evidenced by the deed from Taggart; he avers that no interference in the mines was ever made by Watts, nor any expenditure for working them charged to him, since respondent became the purchaser thereof as aforesaid, nor did Watts make any complaint in regard to this purchase until respondent, by the expenditure of a vast amount of capital at his own risk, brought them to a source of some profit, when he set up a false claim, alleging that he had been defrauded by respondent, which is utterly untrue; he again solemnly denies all fraudulent design, combination, misrepresentation or act in his purchase of this property, and avers that Watts often solicited him to purchase the same [**47]  before he consented so to do; that his solicitor, Scott, filed his petition and acted in good faith in conformity with Watts' agreement with respondent; denies that he wrote letter K for the purpose of deceiving Watts or making him believe that no deed had been taken for the farm, and that he ever intended to deceive him, or that Watts is easily deceived in matters pertaining to his own business or rights, or that he was ignorant of the contents or meaning of the petition in the mortgage case, or that he was incapable of understanding the same, or destitute of counsel to aid him in comprehending it; he denies also the allegations that Watts is not a man of business or business habits, and avers that he has been a long time a justice of the peace of Baltimore county, and has discharged the active duties of that office, and has also been a judge of the district court of the 3rd election district of that county and performed the duties thereof; he avers that paper P was a confirmation of the original agreement between them, which was fully set forth in the petition, to which they are both bound by their consent filed in the mortgage case, but as respondent, at the date of said paper,  [**48]  had not received his deed from Taggart, he asked for and obtained that written evidence from Watts of his title to the farm, to be used at the trial between himself and Davis, and for any other fair and honest purpose, and submits that it does not now lie in the mouth of Watts to repudiate the obligation of an instrument which he says he executed only to be used in a trial against another; denies that he has made large profits from the mine, but admits that he refuses to account to Watts in respect to his mining operations, because Watts has no right or interest, and has never invested a dollar in them; he relies upon the statute of frauds as a bar to the relief sought by this amended bill, and as an answer to any alleged agreement or contract touching said land. He also denies the allegations contained in the bill of discovery, and refers to his answer to the same, which was filed at the same time with his answer to this amended bill.

It was agreed, that the evidence taken under the original bill and answer, might be used at the hearing under the amended or supplemental bill and answer, subject to all legal exceptions. The proceedings which were commenced in the Superior Court [**49]  were then, by consent, transferred to the Circuit Court of Baltimore city.

Exceptions were then filed to the sufficiency of the averments of the bills, original and amended, in substance as follows:

1st. For that whereas the bill, among other things, prays that defendant may be required to deed back to Watts the mine and farm, or such interest therein as by agreement J he should appear to be entitled to, yet that agreement does not show that Wilson entered into any contract with Watts to deed back the mine and farm, or any interest in either of them, either upon the hypothesis that Wilson had, or in the event he should thereafter, become the owner of the entire property by purchase or otherwise.

2nd. For that whilst Watts admits that he made the declarations and admissions, to be found in the record, of the mortgage case of Hook vs. Watts, and does not pretend that he did not knowingly make the same, yet he seeks in pleading by averments to contradict the same, to ascribe to them meanings and effects contrary to their plain meaning and operation, and in fact to vary them by averment of agreements or assurances made, or understandings, or confidences, or trusts, or intentions,  [**50]  or purposes of a directly contrary import. The defendant therefore excepts to these averments:--1st. Because the complainant is not at liberty to give to said admissions and declarations, meanings and effects contrary to their true meaning and effect. 2nd. Because no averment can be made by complainant to contradict said record. 3rd. Because if these admissions and declarations were untrue in fact, the same were a fraud upon the court in which they were made, and on all persons whose rights were, or were liable to be, affected thereby, and that complainant is estopped to aver the contrary thereof.

3rd. For that whilst complainant pretends that other conveyances were intended to be made between him and Wilson, he does not set forth and show what such conveyances were, nor whether such intention was based on any and what agreement, or whether such conveyances were to be as qualifications or as modifications to any and what particular conveyance.

4th. That Watts, in now seeking to destroy and impair, or otherwise affect the deed from Taggart, really affirms and shows, that he was guilty of gross fraud upon others in the various transactions which he pretends to have taken place,  [**51]  and thus, by his own showing, has no standing for relief in this court.

5th. That the bills are very vague, indefinite and uncertain, in their statements and averments.

6th. That whilst the complainant is seeking the specific performance of an illegal, executory, parol, contract, denied by the answers, he does not set forth and show with any certainty what the precise contract is, nor aver and show any acts of part performance, nor does he tender performance.

7th. That whilst complainant charges fraud in no sparing terms, yet at the same time he admits that the contracts entered into by him were knowingly made and entered into, and precisely import what they were intended to import, so that the imputations of fraud are to the effect that the same are used in fraud of some conventional agreement, which it is the object of the bill to enforce a specific performance of, yet such agreement is not set forth and stated in pleading.

The defendant also excepted to the testimony, as follows:

1st. To all parol testimony tending to contradict, add to or vary the written evidence of the contracts and agreements, made between the parties in relation to the property mentioned [**52]  in the bill.

2nd. To all testimony which tends to show a state of case different from, or inconsistent with, the state of case presented to the court by the record of the mortgage case of Hook vs. Watts.

3rd. To all testimony which relates to matters not within the scope of the bills, nor warranted by their statements and averments.

4th. To all testimony which relates to any matters not pertinent to the case as made in pleading by the bills.

5th. To all testimony tending to prove by parol any conventional trust, or to connect by parol any written papers in the cause for the purpose of establishing any trust, confidence or agreement, by such papers so connected.

6th. To all testimony tending to show a fraudulent use by defendant of any agreement, deed, or other document.

7th. To all testimony tending to contradict or impair the efficacy of the order of Baltimore county court, passed the 20th of November 1849, as shown by the record of the case of Hook vs. Watts.

8th. To the admission in evidence of letter K, and especially to its admission as any evidence of any trust as respects the deed from Taggart, or as respects the title acquired under the contract [**53]  evidenced by the petition, and the agreement for the ratification of the sale in said case of Hook vs. Watts.

It was agreed that these exceptions should have the same effect as if the testimony excepted to was particularly set forth in them, and the cause was then argued and submitted for decision.

The court (KREBS, J.) delivered a lengthy and elaborate opinion in the case, in which--after stating the allegations of the bills and answers, and referring to the proceedings and decree of the court in the case of Hook vs. Watts, and stating that they bind Watts so as to transfer the title of the property, unless their validity is impaired by some of those influences operating upon him from the party who seeks to avail himself of their benefit, or circumstances of weakness of mind and inadequacy of consideration, which courts of equity have declared destroy the effect of the most solem acts of parties, and judgments and decrees of courts--proceeds:

"It is the peculiar duty of a court of equity to protect the rights and interests of persons of weak understanding and feeble judgment, and who are disabled by distress of mind, arising from pecuniary troubles, or overwhelming [**54]  calamities, from properly managing and disposing of their property. And among the numerous classes of cases in which they afford relief are those in which unconscientious advantages or bargains have been obtained from persons disqualified by weakness, infirmity, age or other incapacity, from taking due care of or protecting their own rights or interests. 1 Story's Eq., sec. 221. And this is upon the theory of the law, that there must be a free and full consent of parties to the acts and contracts affecting their property and rights, to make such acts and contracts binding. Consent is an act of reason accompanied with deliberation, the mind weighing the good and evil on each side. And hence it is, that if consent is obtained by surprize or undue influence, it is not the deliberate and free act of the mind. Secs. 221, 222. Weakness of understanding constitutes a most material ingredient in the inquiry, whether a contract or deed has been obtained by any imposition or undue influence, 'for although if these be made by a man of sound mind and fair understanding, they may not be set aside merely from being rash, improvident, or a hard bargain, yet if they be made with a person of weak understanding,  [**55]  there does arise a natural inference that they were obtained by circumvention or undue influence.' Sec. 235. And the same learned judge says, 'if a person is of feeble understanding, and the bargain is unconscionable, what better proof can one wish of its having been obtained by fraud or imposition, or undue influence, or by the power of the strong over the weak? Sec. 236, and the authorities there cited. By this weakness of intellect, the learned author does not mean that imbecility of mind which would justify the court's protecting power under a commission of lunacy, for in sec. 237, he quotes the language of the Lord Chancellor, in the case of Blackford vs. Christian, 1 Knapp, 78, 'a degree of weakness far below that which would justify such a proceeding, coupled with other circumstances, to show that the weakness, such as it was, has been taken advantage of, will be sufficient to set aside any important deeds.'

"And he further says, 'that the doctrine may be laid down as generally true, that the acts and contracts of persons who are of weak understandings, and are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify [**56]  the conclusion, that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented, or overcome by cunning or artifice, or undue influence.' Sec. 238.  2 H. & J., 285, Brogden vs. Walker.

"Another class of inequitable and unconscientious bargains, are those described by Lord Hardwicke in Chesterfield vs. Jaussen, 2 Ves., Sen., 155, in which he says, 'courts of equity have an undoubted jurisdiction to relieve where the unfairness is apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses and not under delusion would make.'

"There is also another class of cases in which relief is constantly granted, in which, to inadequacy of price or inequality in the bargain, is superadded other circumstances of a suspicious nature. Story's Eq., secs. 244, 246. As for example, to use the language of the Chancellor in Copis vs. Middleton, 2 Madd. Ch. Rep., 568, 'where the transaction is such as to be inconsistent with the sober manner of a man's transacting his affairs,' there, he says, 'inadequacy of price is strong evidence of fraud.' By inadequacy of price in this passage he does not mean 'gross inadequacy, which [**57]  shocks the conscience,' for he had already declared, in the preceding part of his decision, that it alone, without superadded circumstances, would invalidate the transaction. And it is perfectly well settled, that the weakness of mind in the party to the transaction, that influences the courts in their decisions in the foregoing classes of cases, is not that which arises only from general mental imbecility, the natural incapacity of infancy, or the infirmity of old age, but it is immaterial whether it proceed from such causes, or 'from those accidental depressions which result from sudden fear or constitutional despondency, or overwhelming calamities,' (1 Story's Eq., sec. 234,) 'from extreme necessity or distress,' sec. 239, or such like causes, that 'harass and perplex the intellect and render a man uneasy at the time,' so that 'it cannot be supposed that he had a mind adequate to the business which he was about.' Sec. 234.  5 Blackf., 530.

"There is also that extensive class of cases in which courts of equity are accustomed to exercise a most plenary jurisdiction for relief, denominated constructive frauds, by which are meant such acts or contracts as, although not originating [**58]  in any design to perpetrate a positive fraud, yet by their tendency to deceive or mislead others, or to violate confidence reposed, are deemed equally reprehensible, and are prohibited by law as within the same reason and mischief. Some of the cases under this head grow out of special, confidential, or fiduciary relations between all the parties, or between some of them, which are watched with especial jealousy and solicitude, because they afford the power and means of taking undue advantage, or of exercising undue influence over others. Courts of equity therefore interfere in such cases, where but for such a peculiar relation they would either abstain wholly from granting relief, or would grant it in a very modified and abstemious manner. And they act upon the principle which is sometimes called a 'technical morality.' If confidence is 'reposed, it must be faithfully acted on and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interests and cunning over-reaching bargains. If the means of personal control are given, they must always be restrained to purposes of good faith and personal good. 1 Story's Eq., sec.  [**59]  308. Courts of equity will not set aside a contract merely because a man of a high sense of honor would not have entered into it; but some relation between the parties must exist, which compels the one to abstain from 'all selfish projects.' They will not suffer one party standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance. 'The general principle which governs in all cases of this sort is, that if confidence is reposed, and that confidence is abused, they will grant relief.' Sec. 308. The familiar relations to which these principles have been invariably applied, are those of attorney, or solicitor and client, principal and agent, &c., &c.; but the courts have long since extended them beyond these technical relations to apply to "cases of persons standing in the situation of confidential advisers,' sec. 319; or confidentially entrusted with the management of the concerns of another, in whom he reposed a very 'special confidence,' Hunter vs. Atkins, 3 Mylne & Keene, 113; and to all cases where confidence is reposed, and one party has it in his power, for his own advantage, to sacrifice those interests which he is, in conscience,  [**60]  bound to support.' 1 Jeremy's Eq., 396. The law upon this point, as now adopted and constantly acted on by the courts of England and this country, together with the authorities to sustain it, is fully set forth by the court in the case of McCormick vs. Malin, 5 Blackf., 509. In that case the court says, 'there was no formal relation between the parties of principal and agent at the time of the sale, but the one reposed a confidence in the other as undoubting, and was liable to an influence as powerful, as if that relation had subsisted; the rule in equity applicable to all such cases where confidence on the one hand and influence on the other exist, from whatever cause they may spring, requires of the party, in whom the trust is reposed, the highest degree of good faith. On him rests the duty of proving that the contract is in every respect equal, fair and equitable; if he fails in this, it is a case of constructive fraud and avoids the contract,' page 523, and the authorities there cited, also page 527. Lord Eldon in Gibson vs. Jeyes, 6 Ves. 277, in reference to the principle of the rule, that in transactions and dealings between attorney and client, in regard to the property of the [**61]  latter, the onus lies upon the attorney of showing that no undue advantage has been taken, says, 'that it is found in that great rule of the court, that he who bargains in a matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence, a rule applicable to trustees, attorneys, or any one else;' a rule as Story says, 'applying to all persons standing in confidential relations with each other;' and which he says is this, viz., 'it is not necessary to establish that there has been fraud or imposition upon the client, but the burthen of establishing the perfect fairness, adequacy and equity' of the transaction or bargain 'is thrown upon the attorney.' 1 Story's Eq., sec. 311.

"From the foregoing we deduce the positions: 1st, that courts of equity will set aside deeds or contracts of a man of weak understanding, not equal to the task of attending to his own interests with deliberate judgment, where the bargain on which it is founded is hard and unreasonable, and the consideration inadequate. 2nd. Of a man of good understanding, and under ordinary circumstances competent to manage his affairs with a due regard to [**62]  his interest, where the deed, contract or bargain is between himself and another, in whom he places confidence and relies on to guard and protect his interest, and where the consideration is not perfectly fair, adequate and equitable; and a fortiori will such deed or contract be set aside, where the circumstances of weakness of judgment, inadequacy of consideration, and confidential relation, combine to impeach the transaction.

"Before examining the evidence to ascertain how far these principles apply to the facts in the case, let us glance at the species of property involved in this controversy. We find it was a tract of land in Baltimore county, not far from the city, which, not so valuable as many other lands for agricultural purposes, yet concealed, under its less favored soil, rich stores of mineral wealth, undeveloped treasures of copper ore;--that kind of treasure which, as we are told by high authority, when a man discovers that it is to be found in his neighbor's field, he goes and sells all that he has that he may make himself the owner of it; that description of property to which a man clings with the tenacity of forlorn hope, and which, of course, Watts was very desirous [**63]  to retain in his possession. With all this Mr. Wilson was perfectly well acquainted; and he knew further, that Watts was poor, and that this property was 'his main dependence.'

"It cannot be doubted, from the direct testimony of the witnesses examined upon that point, that Watts was a man of very feeble capacity for business and pecuniary transactions. McConkey says, that 'Watts is not a man of business habits,' that he is not 'calculated to transact business in which there is any financiering.' Rider says, that 'he really thinks that Watts is not a man of business;' and to the defendant's cross-interrogatory the witness replies, 'that he does not think Watts is a man of ordinary understanding, competent to make contracts, and that he would not trust him to make a contract for him.' The former of these witnesses speaks from a knowledge of Watts for thirty, and the latter for many years. Hook, who says that he has known him for twenty years, testified to the same effect. There is nothing brought out on the cross-examination of these witnesses, that shows that they speak from prejudice or ill-will against him, or that impairs their testimony, and the defendant has not produced a [**64]  single witness to rebut what they have stated upon this point. All that he has relied upon, by way of answer to these charges, to weakness of mind and incompetency, is what he alleges in his answer, and what is stated by Watts' own witnesses upon the defendant's cross-examination, viz., that Watts has acted as a county justice of the peace, and that he was one of the associate justices of the 3rd election district of Baltimore county. But Rider and Hook, upon whom the defendant relies for the proof of these facts, say, the former, that he never thought him fit 'to be a justice of the peace,' that 'he had seen some of his official acts, he doubted whether he understood what he had written, he has written pieces which deponent thinks he, Watts, did not understand;' and the latter, 'that Watts was one of the associate justices with him of the said district court, that he sat at said court two or three times, but took no active part in its business;' and that he is not able to say, 'whether he, (Watts,) understands what he reads and writes.'

"This very fact of Watts' deficiency as a man of business, and incompetency to contract with skill and judgment, was put prominently in issue [**65]  in the pleadings, and the defendant has not met it by such evidence as satisfies the court, in view of what the complainant's witnesses testify, that Watts was not a very simple-minded man, of feeble intellect, of limited capacity for business, and not possessed of sufficient ability to qualify him to bargain and contract, with reference to the property in question, with that degree of judgment and deliberation which courts of equity deem necessary to render such transactions valid. And this seems to be the estimate that Wilson himself formed of Watts' qualifications to manage his business affairs, and to deal with this property; for giving the former credit for sincerity in the sympathy that he manifested for Watts, and the reason he assigned for his willingness to befriend him, he certainly did not believe him competent to protect himself from being cheated and defrauded out of this property, for Davis, one of the witnesses for the complainant, says, that Wilson told him that 'he felt a disposition to befriend Watts, to prevent him from being cheated and defrauded by Isaac Tyson,' who was supposed by Wilson to have some designs upon these copper mines, and who he said 'was endeavoring [**66]  to wrong Watts and to get the mines for less than their value.' And when Watts went to Tyson's counting-room to offer these mines to him, Wilson came with him as his 'counsellor' and friend, apparently not willing to trust him to negotiate, without his aid, with Tyson; and he appears to have gone in the same character to the office of Stewart, who had written two notes to Watts, requesting an interview with him in regard to these mines, and who, instead of calling himself, is represented by Wilson. And when Stewart says that he is a friend of Watts, and wished to promote some satisfactory arrangement with Tyson, Wilson's reply proves clearly, that he did not regard Watts as equal to the task of taking care of his own interests and protecting himself from imposition. He says, 'No such arrangement could be made, .... Tyson wanted to take advantage of Watts, and that he intended to protect Watts from imposition, and that he should not sacrifice' these mines; language highly creditable to his friendly and sympathetic feelings for Watts, but still the language of the stronger towards the weaker; the language of one who is confident of his powers to protect and defend the interests of another,  [**67]  who is not competent to guard and preserve them himself. The letters addressed, from time to time, by Wilson to Watts, and filed with the evidence, contain cautions and charges to Watts to 'keep cool, not to brag or talk too much,' to be on his guard 'how he talked and who he talked to,' and encouragements 'not to be frightened and afraid,' all in regard to this property, which, if they mean anything, show conclusively, that Wilson regarded Watts as a weak and incompetent man, to be addressed and cautioned almost like a child, and altogether unfit, without assistance, to manage and transact his business affairs. If he was not the man of inferiority of intellect, feebleness of mind, and unfitness for his business, that all the circumstances of this case, and the testimony of these witnesses, who have known him for so many years, prove that he was, why has not the defendant produced other persons, who have known him equally well, to prove that he was a sound-minded, shrewd man, skilful and expert in matters of business, and perfectly competent to attend to and take care of his own interest? It certainly was not enough, in answer to the evidence in the cause, upon this point, to rely [**68]  upon the simple fact that he had acted as a justice of the peace in the county or in the district court, especially when the witnesses who proved these facts, rebut the inferences therefrom, of capacity and qualification, by saying, that he was, in their opinion, not fit for the office.

"And again, at the times of these transactions between Watts and Wilson, beginning with the earliest, the contract of April 25th, 1846, Watts was poor and in great pecuniary distress; this Bare Hill farm and mine, his only meas of support for himself and family, had been advertised for sale to pay Hook's mortgage claim, and he was evidently in that state of uneasiness of mind, perplexity and embarrassment, which the courts, in the language of the authorities referred to, regard as 'overwhelming calamities' that 'harass and perplex the intellect, and render a man uneasy at the time, ....so that it cannot be supposed that he had a mind adequate to the business that he was about.'

"Such being the character of his mind, both from natural and accidental causes, what does he do? He encounters, in a business transaction of the deepest moment to himself, a gentleman whose keenness, shrewdness, and [**69]  business qualifications and capacity, no one who knows him will question. That transaction was an agreement to sell on the part of Watts, and to purchase on the part of Wilson, the Bare Hill farm and copper mine. Wilson disavows any other view of it than this; the contract, he alleges, is set out by Watts in his petition, in the case of Hook vs. Watts, filed on the 27th of April 1846. He also alleges, that exhibit No. 1, filed with his answer, dated the 25th of April 1846, evidences this contract. What was the consideration to be paid by him for this property? Exhibit No. 1 says, that it was 'the payment of the sum of money due under mortgage to Hook.' The petition says it was $ 2100, which Wilson, in his answer, says, was more than sufficient to pay the mortgage, interest and costs; and which, by the auditor's account, it did exceed by the sum of $ 15.66. Was not this contract with this man, such as he seems to have been from the evidence, of such a character as courts of equity discountenance and set aside as being hard, unconscionable, unreasonable, and not founded on a fair, adequate and equitable consideration? Was not Watts 'sacrificed' by this sale? To show that he was, it is [**70]  not necessary to refer to the testimony of the different witnesses in regard to the value of this property, because Wilson's letter to Watts, of the 9th of April 1846, is sufficient for the purpose. That letter was written after the property had been first advertised under the mortgage by Taggart, and before the day of sale had arrived, and it appears from it, that Wilson had called on Taggart and 'handed him a note, signed by Hook, to stop the advertisement,' which he declined doing before he saw Hook. Wilson then says in this letter, 'from what I saw of Mr. Hook I don't think he is disposed to injure you further than to secure his money.... If he, (Hook,) will come in with you on Saturday, I will go with him and you to Taggart and save you from sacrifice.' What is meant here by Watts being 'injured' and 'sacrificed?' Certainly nothing else but having this property sold to pay this mortgage debt. It was then advertised for sale, and it was the sale that was to 'injure' and 'sacrifice' him, and why? because it was all his living, and he would be left destitute without it, and it was evidently supposed to be worth much more than the mortgage claim. If Watts would have been 'injured'  [**71]  and 'sacrificed' if his property had been sold to any one else for this mortgage debt, does he not suffer as much if it is sold to Wilson for the same consideration? Does he 'save Watts from sacrifice,' as he kindly offered to do, by taking this same property on these terms?--and that too after he had interfered and stopped the public sale--which no doubt would have brought its fair value--and purchasing it at private sale?

"Mr. Stewart, in his testimony, says, 'that Wilson spoke of the said mineral lands as being very valuable; ....that they were Watts' main dependence, and that there was no chance of his arranging with Tyson for them, for anything like a fair value.' This took place, as Stewart says, in 1847, but there is nothing in the evidence to show that anything had been done to render the mines more valuable then than they were in 1846, at the time when Wilson alleges he made the purchase. And it appears from the evidence of the agent of Tyson, (Farquharson,) that in the spring or summer of 1846, he offered Watts $ 4000 for the mineral right of this property, he reserving to himself one-fifteenth of the ore, which he refused, replying that he had made other arrangements.  [**72]  There can be no doubt, from all the circumstances of the case, that Wilson knew of this offer at the time he had the conversation with Stewart above mentioned; and if 'there was no chance of arranging for anything like a fair value,' with a person who had made such an offer for this property, as Wilson said there was not, he certainly meant, at that time, to intimate that it was worth a great deal more than that amount. In addition to the evidence of the value of this property, furnished by the declarations and statements of Wilson, there is a great preponderance of testimony in favor of the conclusion, that it was of great value, and that the consideration mentioned in the said agreement, was by no means fair and adequate.

"But there is, superadded to the foregoing view, the relation of friendly agency and proffered aid, and kindly intercession and interference, to protect and relieve Watts in his difficulties and embarrassment in regard to this property, and to save it from sale and sacrifice, and from being obtained from him by cheating and defrauding him, which Wilson had established between Watts and himself, and which disables him from purchasing this property unless for [**73]  a fair, adequate and equitable consideration, and throws the whole burden of proving that the consideration was of this character upon him. The court is of opinion, that all the principles that govern courts of equity in their decisions in cases of bargains, transactions of buying and selling, &c., between persons standing in fiduciary and confidential relations to each other, apply to this case. It differs very little, if at all, from the case of attorney and client. Wilson chose to place himself in the position of attorney in regard to this matter of the advertisement and sale of Watts' property under Hook's mortgage. It was a business requiring the services of an attorney or some such agent, and Wilson proffers these services. We do not find from the evidence that Watts ever consulted or employed a lawyer in reference to this matter, or that Wilson advised him to do so, or called in the aid of one until the proceedings were commenced to consummate his alleged purchase, by procuring a deed for him from Taggart, and then Wilson's attorney is employed for that purpose.

"This Bare Hill property was advertised on the 31st of March 1846, by the attorney of Hook, for sale on the 23rd [**74]  of April ensuing, upon the ex parte proceeding authorised by the mortgage act of 1826. It does not appear in the case that Watts had any attorney at this time representing his interest in connection with this property- If he had wished to delay the sale or make other arrangements in reference to the case, his first step would have been to employ counsel. At this stage of the matter we first find Wilson connected with it as the friend, counsellor and protector of Watts, performing those very acts that his attorney and most generous friend would have done to prevent the property from being sold and sacrificed. From Wilson's letter of the 9th of April 1846, when the advertisement of the sale was in the papers, which is the earliest definite date in regard to his connection with this matter, we find that on Sunday previous Hook had agreed to an arrangement, 'under which (as Wilson says) he will be double safe,' which was doubtless his offer mentioned by Hook in his testimony, 'to take up the mortgage and give his, Wilson's, notes, at one, two and three years, for the amount.' That in consequence of this arrangement Hook had signed 'a note to Taggart to stop the advertisement,' which was [**75]  delivered to Wilson, and by him handed to Taggart, who refused to discontinue the advertisement; Wilson, in his letter, then says, that he did not think that Hook was disposed to injure Watts, and that if Hook would come in with Watts and call at his, 'Wilson's, store, he would satisfy Hook about Watts' security, and go with Hook and Watts to Taggart and save Watts from sacrifice.' Hook, in his testimony, says, that Wilson came over where he was, at his brother's, and offered to take up the claim against Watts' property by giving his own notes for the amount, that he took him to be Watts' friend in the interview, because he made the above offer and was willing 'to take the debt of Watts on himself.' Wilson, in his answer, admits, that he did agree to give his notes for that purpose, but that they were ultimately declined, 'and the property was advertised for sale.' Taggart says, that Wilson called at his office, as he understood, as the 'friend of Watts,' and offered his, Wilson's, notes for the whole amount of the mortgage debt, which he, Taggart, declined. Tyson says, that Watts and Wilson 'called together at the counting house of the former, Wilson appeared to be the counsellor [**76]  and friend of Watts, he, (Tyson,) so considered him at the time. They called to know what he would give for that part of the Bare Hill farm where the mines were and which had been leased to Davis.'

"It is to be observed, that all this occurred before the alleged contract of sale exhibit No. 1, dated 25th of April 1846, and before Watts' petition stating the contract, dated the 27th of the same month, and that there is no intimation from Wilson in anything said or done by him up to the former date, nor any circumstance from which it can be inferred that he was himself in treaty for the purchase of the property, or looked to becoming the owner of it. What he had offered to do was to save it 'from sacrifice,' to protect Watts from injury, to assist him in keeping his property, which Wilson said to Stewart 'was his main dependence,' even offering his own notes, (not 'having the money,' as he stated to Taggart,) for the whole mortgage debt, to stop the advertisement and prevent the sale. At this time Watts could have regarded him in no other character than that of his best friend, his counsellor, his confidential adviser, his agent, apparently ready and willing to do anything in his [**77]  power to befriend and assist him in his distressed condition, and to save his property from sale and sacrifice. This being the relation in which these parties stood to each other, Watts must have placed the utmost confidence in Wilson, and he must have had unbounded influence over him. No stronger proof of such confidence and influence could be adduced than the fact that Watts, (as alleged by Wilson,) signed the contract of sale of the 25th of April 1846, written by him without any legal adviser, to Watts, a circumstance always regarded as suspicious, in which, for the consideration of the mortgage debt only, to be paid by Wilson, he agrees to sell to Wilson the whole of this Bare Hill property, 'with the right of his mother's life estate, also to be conveyed to said Wilson.' Now this life estate was not embraced in the mortgage to Hook of course; without it he says he 'was satisfied' with the property 'as security,' and 'that in April 1846, it was worth a good deal more than the amount of this mortgage debt,' whilst other witnesses speak of it as being of very great value. From the foregoing facts it is not unreasonable to conclude, that Wilson's influence over Watts was such that [**78]  he would have signed almost any paper, in reference to this property, that Wilson might have written and offered to him; and that under this influence and with unquestioning confidence in him, he, Watts, signed the petition prepared by Wilson's solicitor, which he no doubt understood to be intended for the mere purpose of procuring the title for Wilson, in pursuance of this alleged contract of sale, in regard to the consideration for which he would have made no more inquiries than he would, if he had been called upon to prepare a deed of it for these parties. In fact he had nothing to do with the negotiations or arrangements that led to this alleged contract, and cannot be supposed to have known what was in the mind of the parties in regard to it. The testimony of another witness, not yet referred to, is very strong to show the relation of friendly agency and protecting care that Wilson had assumed towards Watts, and the opinion that Wilson entertained of the great value of this property. I have looked carefully through the whole evidence and find no attempt made to impeach the testimony of this witness. He states that Wilson stated to him, 'that he was the friend of Watts, and that [**79]  he merely would undertake this thing to get him out of the clutches of Tyson and of Davis, who were both, as Wilson said, trying to rob Watts out of his house and home; that the mine was invaluable, there was no telling the amount of money it was worth; that he would not take any amount of money for it if he was Watts; that it would turn out to be a fortune for him; that if he was Watts he would not let Tyson have it for any consideration, and this was said in the presence and hearing of Watts.' All this is inconsistent with the fact that the property then belonged to Wilson, of which he says he became the owner by the contract with Watts of April 25th, 1846, and the contract set forth in his petition of the 27th of the same month, before mentioned, and of course these statements and declarations were made by Wilson before that time, and they define, in his own language, the relation he had assumed in reference to Watts over this property, and show that he had determined to use his influence with Watts to prevent Tyson from becoming the purchaser for any price, and sustain Watts' allegation in the bill, which Wilson does not deny in his answer, 'that he frequently dissuaded him (Watts)  [**80]  from making a bargain with Tyson,' and this is especially important in view of the facts in proof, that he was exceedingly anxious to get the property, and had actually offered $ 4000 for it, which Watts declined, because he had made other arrangements. Conceding that it was difficult, from the nature of this property, to say what it was worth, with much precision, at the time Wilson alleges Watts contracted to sell it to him, or what might have been obtained for it at private sale, we find a definite offer of $ 4000 made for it--the opinion of many persons, competent to judge, that it was of great value--Wilson's statements that it was very valuable--and Watts deprived of the benefit of that great test of the fair value of his property, a sale at public auction, where Tyson, who Wilson says, ought not to have had it for any consideration, would have been a competitor for it with others. And we find such a sale actually advertised, stopped by the agency of Wilson, 'to save,' as he says, 'Watts from sacrifice,' and Wilson, as he alleges, becoming the purchaser at private sale for about $ 16 more than the mortgage debt, interests and costs, $ 2100, when no public sale was threatened,  [**81]  as the evidence of Taggart shows. If the inadequacy of this consideration is not, in the language of some of the decisions, 'sufficient to shock the conscience,' the whole circumstances of the transaction certainly produce that effect, and the court is constrained to say that it cannot sustain this contract with Watts, and regard it as any foundation for a valid title to this property in Wilson.

"It will be found from a review of the authorities, that upon the objections of incompetency and inadequacy of consideration, the proofs in this case are much stronger than the rule established by those authorities requires. In Gibson vs. Jeyes, 6 Ves., 272, in which the two objections just mentioned, coupled with the relation of the parties, were urged against the contract, Lord Eldon says, looking to the third ground, the relation of the parties, 'there is enough in this case to authorise the court to say, there is probable evidence of incompetency, and evidence of some degree of insufficiency of consideration that can be felt as extremely material evidence, when it is to be connected with the third ground.' In McCormick vs. Malin, 5 Blackf., 531, the court, after considering the several [**82]  grounds for setting aside the contract in that case, that have been relied upon in this, closes its examination in the following language, precisely applicable to the case before this court: 'If it could be doubted whether any of the views that we have taken, separately considered, is sufficient to entitle the complainant to the relief he prays, that doubt must vanish before their combined force. A treaty respecting an important interest, entered into between two persons of very unequal powers, one with a naturally unsound judgment, the other enterprizing, keen and sagacious in business, the weaker mind trusting in the stronger, that influence increased by pecuniary distress on the one side and pecuniary power on the other, and resulting in a contract exhibiting great inadequacy of consideration:--A treaty thus characterised, presents claims to relief which a court of equity cannot withstand.'

"If this case then stood upon the contract of sale alone, as alleged by defendant in his exhibit No. 1, or as set forth in Watts' petition, the court would have no difficulty in relieving against it. But the defendant relies in vindication of his title, not only upon this contract of sale,  [**83]  but also 'upon the orders of Baltimore county court, in the said case, ratifying and confirming said sale, and upon the deed from Taggart in pursuance thereof,' which, deriving its effect solely from the validity of said order or decree, as it has been termed in the argument of counsel, must stand or fall with the said decree.

"This order was passed by the court on the 20th of November 1849, more than three years after the alleged contracts of sale; and was passed with the written consent of Watts filed in the case, without which, for several reasons, it would have been a nullity. The defendant claims for this decree a very impregnable character, and insists that Watts cannot gainsay it, or aver anything against it. Now it is perfectly certain, from all the authorities, that all the facts, circumstances and reasons that have been previously considered, and which it is unnecessary to recapitulate here as objections to the validity of the said contract of sale, can be relied upon against the validity of this decree. It is assailable upon the same grounds and for the same reasons. If a decree has been improperly obtained it can be impeached, Mitford's Ch. Plead., by Jeremy, 112;  [**84]  and when made by consent, and the consent has been fraudulently obtained. Ibid., 114. 1 Story's Eq., sec. 252. 2 Do., sec. 1522. Bradish vs. Gee, Amb., 229.  Monell vs. Lawrence, 12 Johns. Rep., 521. But for the opposition of Tyson to Watts' petition, as shown in the proceedings in the said case of Hook vs. Watts, the record of which is one of the exhibits in this case, this decree would no doubt have promptly followed the petition, and having been in company with it would have shared its fate, so far as that fate is determined by the views and reasonings hereinbefore expressed and urged, upon the law and facts in this case; but does the circumstance of Watts having assented to this decree, and its having been passed by the court so long subsequently to the contract of sale, give to the decree any force, effect or validity, which the contract does not possess? It certainly does not, because all the evidence in the cause shows, that the previous condition of Watts, and the relation of Wilson to him, was unchanged at the time of the decree; nay, that the circumstances of their relative position were such at that time, as to make the objections to the validity of this decree, for the reasons [**85]  heretofore stated, stronger than those that could be urged for setting aside the contract of sale. Whilst there is much in the testimony of the witnesses in this case to maintain this position, there is quite enough, for that purpose, to be culled from Wilson's letters to Watts, written during the interval between the contract and the decree. They are expressed in language of the warmest apparent friendship, manifesting the deepest concern for his interest in connection with this property--show that he seemed to be acting for him, and his interests, in reference to pending law suits with Tyson--congratulate him on successful results of this litigation, both in the court of chancery and in the appellate court--address him now in terms of admonition, 'not to brag too much, .... not to talk too much, .... be cautious who you talk to;'--and then, in terms of encouragement, exciting his hopes of great gain and benefit to be derived from these mines, in words such as these, 'plenty of money ahead, only have patience, .... only keep cool and look sharp, the money will come sooner or later in no small sums,'--all showing that Watts still had the strongest reasons for regarding him [**86]  as his best friend--his confidential adviser, employing his agency in every way to promote Watts' interests in connection with this property, and excluding any doubt of his enjoying the entire confidence of Watts and having the strongest influence over him, and there is nothing in the case to furnish any reason for believing that Watts was at that time more competent to attend to his interest in this business than he was when he signed the contract of sale, and nothing having been added to the price of the property, it was quite as inadequate as a fair and equitable consideration. The question, as to the effect of subsequent acts and deeds of parties in ratifying and confirming contracts liable to be impeached on the grounds alleged against his contract, has been fully considered in the elaborate opinion of the court, in the case of Butler et al. vs. Haskell, 4 Desauss. Eq. Rep., 651, 709, in which the judge, delivering the opinion, says: 'I understand the doctrine, as to confirmations, to be quite settled, that the party who gives them must be shown to be no longer under those circumstances of necessity, or of overbearing influence or blind confidence which led into the first agreement,  [**87]  and that he is aware that he is not bound by the original contract, but may be released from it; but nevertheless he choses deliberately and without imposition to confirm what he had first done. To this may be added, that in many cases, particularly of great abuses of confidence, confirmations are not allowed to have any effect;' and on page 715: 'The few cases in which confirmations have been allowed to prevail, have been cases of great fairness and deliberation, where very intelligent men, fully aware of their rights and of their title to relief, have nevertheless thought proper to confirm contracts impeachable in their character; and this, after the necessity which led to the first bad bargain had ceased.' In Purcell vs. McNamara, 14 Ves., 91, it was decided by Lord Eldon, and afterwards by Lord Chancellor Erskine, that 'several deeds executed at large intervals should not prevail as confirmations, the other party being throughout under the same influence, control and ignorance of their rights, and every instrument signed under the same blind confidence.' The case above cited, of Butler vs. Haskell, was similar to the case before the court, in respect to the reasons urged against [**88]  the validity of the deed in that case sought to be vacated; they were inadequacy of price, the weakness and necessities of the sellers, and the relation of confidence between them and the purchaser; upon which grounds the deeds were all set aside, as well the original as the confirmatory, and it is a strong authority upon all these points. I am constrained therefore to say, that I regard this order of court, or decree, and the deed made in pursuance of it, as having no more validity or effect than the contract of sale.

"It appearing then to the court, from all the evidence in the case, that this order or decree which the defendant alleges is in pursuance of and carries out this contract, is impeachable, and liable to be set aside and vacated for the various reasons above stated, we are brought to the question: Whether the complainant in his pleadings has set forth a case to which this state of facts will adapt itself?

"It is an elementary rule of pleading that a complainant's relief must be according to his allegations, and that where he seeks relief against a decree upon such grounds as would constrain a court of equity to vacate it, he must sufficiently allege these grounds,  [**89]  and must also bring to the view of the court in his bill of complaint the particular decree or proceedings that he seeks to impeach, and it is not enough for him to take up the decree when pleaded or relied upon by the defendant, object to it, and ask to be relieved against it, he must make it the substantive matter of impeachment in his bill of complaint. Story, in his Equity Pleading, after stating that there is no doubt of the jurisdiction of courts of equity to grant relief against a decree where it has been obtained by fraud and imposition, which infect judgments at law and decrees of all courts and annul the whole in the consideration of courts of equity, prescribes the frame of a bill to set aside a decree upon the above grounds in these words: 'A bill to set aside a decree for fraud must state the decree and the proceedings which led to it, with the circumstances of fraud or whatever may be the ground on which it is impeached,' sec. 428.

"The original and amended bill filed in this cause, although not drawn very skilfully, yet are very full in the statements and repetition of the matter on which the complainant relies for relief. They set forth this petition, proceedings,  [**90]  and order, or decree of the court, with the various grounds of objection that the evidence shows in the opinion of the court he is entitled to urge against them, viz: his ignorance, unfitness for business and incompetency--the inadequacy of the consideration, and the relation which the defendant had assumed and stood towards the complainant; the unlimited trust and confidence that he reposed in the former, and the influence that he acquired and exercised over the complainant; and concludes with an alternative prayer for relief, looking to a favorable view of the case by the court in this aspect of it. The court must therefore declare its conviction, that the facts and circumstances averred in the bills of complaint are sufficient to entitle the complainant to relief upon the grounds heretofore considered in this opinion. The court has given much examination, thought and reflection, to the principles, authorities and reasonings that have brought it to the judgment already declared upon this transaction between the complainant and defendant, regarded as a purchase, because the defendant has thought proper to rest his defence exclusively upon that view of the case, and it is constrained [**91]  to say that regarding it in that character, it cannot, consistent with the well settled principles that regulate courts of equity in like cases, regard this transaction in any or all of its parts as giving a fair, valid and honest title to the defendant.

"Having considered this case in the aspect of it presented by the defendant in his answers, I will proceed to examine it in another view, presented by the complainant in his original bill, in which he alleges that the agreement set forth in the petition filed in the case of Hook vs. Watts, and the confessions made by him in that case, and to be found in the chancery record referred to, were not made for the purpose of conveying the absolute legal title in the Bare Hill mines and property to the said Wilson, but only for the purpose of making him safe in the payment of the mortgage debt, until other conveyances were made between him and Wilson, accurately defining and limiting his right and interest in the mine. The court will then enquire:

"1. Whether it appears from evidence that it was the intention and understanding of Watts and Wilson that this agreement, proceedings and deed, should not convey the absolute title and [**92]  ownership in this property to Wilson?

"2. Whether it sufficiently appears from the evidence, what interest and estate they were to have in the said property under the agreement and proceedings?

"3. Whether the rules of law and decisions of the court of equity prevent this court from carrying out the intention of the parties in reference to such interest and estate, as it may be disclosed by the evidence?

"It may be premised upon the first question, that a sale of this property to any one was the very thing that Watts was struggling to avoid, and the calamity that Wilson seemed desirous to avert, because it was Watts' 'main dependence' and he did not wish 'to be sacrificed.' Again, if the transactions between Watts and Wilson were designed to make the latter the owner of this property; if he was to become the purchaser under a sale from Watts, is it not marvellous that not a single witness is produced who heard, at any time during the long interval between its commencement and consummation, one word between these parties in regard to the sale or purchase of this property, and that not a single line is exhibited in evidence written by Watts to Wilson, nor one from the [**93]  latter to the former, in the course of the correspondence that is proved to have passed during this interval, in which the subject of a sale is mentioned or referred to, or from which any inference can be drawn to prove that Watts regarded Wilson as the owner of this property? And further, Watts had, just before the alleged agreement to sell to Wilson for $ 2100, refused Tyson's offer of $ 4000 for this property; no doubt, from the evidence, acting with the knowledge and advice of Wilson himself, and there was no pressing necessity at that time for a sale of these mines. Though Watts had failed to make, through Wilson, the arrangement proposed and assented to by Hook for time, in the payment of the mortgage debt, yet Taggart had discontinued the advertisement of the property and had abandoned the sale for the time being. In his answer, filed on the 4th of May 1846, to Watts' petition, of 27th of April preceding, setting forth, as alleged, this contract of sale, which answer is a part of the record in the case of Hook vs. Watts, made evidence by the defendant, he, (Taggart,) says, 'that he has no intention at this time to foreclose the said mortgage by a sale of the said property; that [**94]  he had no instructions to do so from the mortgagee and assignee, or either of them, and he denies that the petitioner has any right to insist that the mortgagee shall proceed under the mortgage, or to ask the order for a sale, prayed by him.' Is it not most surprising that Watts, under these circumstances, should at that time have entertained the idea of selling this property to Wilson, and for the price which he alleges was paid by him for it? If he meant to give up his title to it absolutely by this seeming contract of sale, his act is scarcely consistent with sanity. It appears to the court that the mystery in which this part of the case is veiled, is at once removed by correctly understanding the real position of Tyson and Wilson to this property at this time. It is perfectly manifest that there was a struggle between them in regard to it. Watts, in his bill, alleges, 'that Wilson was anxious to prevent Tyson from obtaining it.' Wilson does not deny this in his answer, and the evidence shows that the allegation is true. Hook, as early as 1843, had lent Watts $ 1657 on a mortgage of this property--he had paid no interest on it. Hook says he was satisfied with the security--the property [**95]  was worth a 'good deal' more than the amount of the mortgage debt, but that 'he wanted the interest of his money so that he could make use of it.' And some time before the 6th of October 1853, had placed the claim in the hands of his attorney, Taggart, with authority to him to sue for it; for we find that on that day Taggart, as attorney for Hook, agreed to assign to Tyson the whole of the said mortgage claim absolutely, upon the payment by him within two years of the whole sum due and owing by Watts, with interest and commissions, after the payment of $ 700, on that day paid by Tyson, who purchased the mortgage debt to protect his interest in the mortgaged property, which being created subsequently to the date of the mortgage, he was advised was liable to be destroyed by a foreclosure of the mortgage. Notwithstanding this money was paid to Hook, who says he 'wanted the interest' only, and Tyson had two years to pay the balance, and therefore had control of the mortgage claim and proceedings to foreclosure during that period, we nevertheless find the property advertised for sale the 31st of March ensuing, by Taggart, to satisfy this mortgage debt, which suggests the natural inference [**96]  that Tyson's plan of protecting his interests looked to a sale of the property--a purpose which Wilson seemed to have suspected when he wrote his letter to Watts of the 9th of April 1846, to which he adds, by way of postscript, 'our arrangement with Hook, (which was to give Wilson's notes, &c.,) may not suit other parties who have had arrangement with Taggart.' Taggart refused to stop the advertisement, as we have already seen. Watts, in his bill of complaint, alleges, that Wilson then agreed with him to buy in the property on the day of sale and intimated it to Davis, who informed Tyson, and he induced Taggart to stop the sale. This statement is not denied by Wilson in his answer, and I find strong circumstances in the case to prove that this must have been so. It is certain that the sale at auction was stopped, and that both Taggart and Tyson resisted the private sale to Wilson--Tyson protesting, in his answer to Watts' petition, that it was an attempt to give Wilson the advantage of a purchaser under the mortgage, and to give him a preference over the respondent, (Tyson.) It seems to me perfectly manifest, that these parties were striving, each to prevent the other from getting [**97]  this property, and that the grand object that Watts and Wilson had in view was, by address and management, to defeat Tyson in his plans for acquiring it. This was, no doubt, the purpose of the petition, &c., not to settle the terms of an absolute sale by Watts to Wilson. For though the arrangement took the form of a sale to him for a consideration that paid more than the mortgage debt, as Wilson says, yet it was conceded in the argument that the surplus had never yet been paid to Watts. But looking to the conduct and admissions of Wilson in reference to this property, it appears to the court, that if human acts and language mean what they plainly import, he could not have regarded himself as the owner of this property to the exclusion of any interest, joint or otherwise, with Watts, as he now asserts. His letters to Watts, filed by him as exhibits, beginning from the earliest in date, 9th of April 1846, to the time when the deed from Taggart was executed, contain language and expressions, some of which have been already quoted, and others that will be discovered by a mere glance at the correspondence, which are utterly inconsistent with the theory, that Watts had no interest in the [**98]  mines; such as no man ever wrote to another about property that did not belong to him in any sense, and all this after, as he, Wilson, says, he had purchased it from Watts, long before these letters were written. But this is the tone and language not only of Wilson's letters to Watts, before he signed exhibit P, on which the defendant relies with so much assurance to prove his ownership of the property, and before the execution of the deed from Taggart, but after the date of both these instruments, his written communication shows more definitely than any former one that the writings previously executed did not secure to him the title to this property, according to their agreement. In that letter, dated on the day on which he paid the mortgage debt, when the deed was executed, November 22nd, 1849, he says, 'the business of the mortgage has been settled and paid off to-day,'--strange language to be used by one who had paid the purchase money for property which he had bought and which had just been conveyed to him;--'we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement.' The defendant admits in his [**99]  answer that this letter, which is filed as exhibit K, is in his handwriting. The allegations in the bill in regard to it are, 'that in the month of November 1849, your orator received a letter from said Wilson, marked as above mentioned, stating that said mortgage had been paid and settled, and that your orator must come to town and give him a deed for one-half of Bare Hill, according to agreement. That your orator then came to town and told said Wilson that your orator's wife was sick and could not come to town, but that if said Wilson would draw up a deed your orator should sign it in the country, and said Wilson assented thereto, but no deed was ever sent out by said Wilson; that said Wilson subsequently stated to your orator, that he had determined to charter said mine and your orator and he could settle then,' but that no company was formed and he never settled with him.

"All that the defendant says in his answer to the allegations in the foregoing extract is, that these letters, filed as exhibits with the bill, evidence no such private contract or secret agreement as is alleged by the complainant, and that nothing contained in letter K, or any other exhibit filed in the [**100]  cause, can impair his title to Bare Hill farm; he takes no further notice of this very important document; he gives no explanation of its meaning, notwithstanding it mentions an agreement; he does not say that there was not any agreement whatever in existence to which it referred, he only states that it, with the other exhibits, evidence no such private contract or secret agreement, as the complainant alleged: but though it evidenced no such agreements as these, it might have evidenced or referred to an agreement of another character--a subsisting written agreement, for instance, between these parties. It is to be observed, that in immediate connection with the foregoing allegations in the bill, and preceding them in the statement, is the allegation that said Wilson signed another agreement drawn in his handwriting, exhibit J, and which is the contract for the sale of one-half of Bare Hill farm to Wilson. Now the complainant evidently means, though he does not so state expressly, that this was the agreement to which this letter referred, and though this letter mentions an agreement, and the complainant sets forth and insists upon this agreement J as a subsisting agreement, the defendant [**101]  does not deny that 'this is the agreement to which this letter refers.' This letter certainly proves two facts:--1st. That the deed from Taggart, executed the day before the date of the letter, the alleged basis of the defendant's right to this property, did not settle the title to it between these parties, but that Watts and wife were to give Wilson a deed of one-half of it, according to agreement. 2nd. That there was at the time this letter was written a subsisting, unexecuted agreement on the part of Watts and wife to convey one-half of it to Wilson.

"But, independently of the admissions and statements in these letters from Watts, both before and after the deed from Taggart, to prove that these previous transactions were not meant to convey this title absolutely to Wilson, we have the unanswered and uncontradicted statement in Watts' bill, that in consequence of this letter he came to town, and told Wilson that his (Watts') wife was sick and could not come to town, but that if Wilson would draw up a deed they would sign it in the country, and that Wilson assented to this arrangement. Now here is the distinct allegation, that Wilson agreed to have a deed for one-half of Bare [**102]  Hill farm drawn and send it to the country to be executed by Watts and wife; a careful perusal of the defendant's answers shows, that he has not answered these important averments, either by admission or denial. There is no doubt that it is the privilege of the defendant to refuse to answer any important allegation in the complainant's bill, and that such refusal does not dispense with the necessity of proving the fact alleged, but it raises a suspicion against him and has some influence upon the decision of the cause.  McDowell vs. Goldsmith, 2 Md. Ch. Dec., 387. Joice vs. Taylor, 6 G. & J., 54. It appears therefore to the court incontrovertible, that it was the understanding of these parties that these transactions between them in regard to this property did not vest the absolute title to it in Wilson.

"What interest and estate then were they to have in this property? Watts alleges that Wilson was to hold it as security for the mortgage debt, which he agreed to pay, until other conveyances were made between them, accurately defining and limiting the right and interest of Wilson; this is denied by him. But we find that as late as the 15th of February 1849, after Wilson had purchased,  [**103]  as he says, which was in April 1846, he writes the paper J, which sets forth that Watts and wife had sold the one-half of it only to Wilson. Which paper contains this significant clause, 'in the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to mutual advantage and benefit of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns;' this paper is signed by Watts and Wilson.

"It is to be specially noted here, that Watts' petition, stating the sale to Wilson, on which he relies as the origin of his title, was filed on the 27th of April 1846; the agreement J, above mentioned, was drawn by him and signed by himself and Watts, on the 15th of February 1849, nearly three years after the date of the former. There was no act or proceedings on the part of either of them, in the case of Hook vs. Watts, nor does the evidence show that any other agreement between them, in regard to this property, was executed in the interval.

"So that in the progress of their transaction, they seemed to have abandoned the contract of April 1846, for a sale of the whole to Wilson,  [**104]  and adopted one altogether different--a contract for the sale of half to him; or rather, is not this instrument of writing, of February 1849, in the handwriting of Wilson himself, irresistible proof, that at the time it was executed there was truth in the allegation of the bill, that the proceedings in the said case were not intended to vest any absolute title in Wilson, but that their interest was to be defined by subsequent writings, and that this was the writing by which they then thought proper to define it? I can see no other conceivable theory with which this act can be reconciled. If this position be established, the case is relieved of all difficulty growing out of the fact that Watts may have subsequently executed or assented to writings or acts designed to place the legal title in Wilson, and especially out of the fact that he assented to the subsequent ratification of the sale in the course of said proceedings, for this was only carrying out the original design of the parties and the apparent purpose for which these proceedings were instituted, viz., to convey the title to Wilson, which Taggart had refused to do without an order of court.

"It is very important to keep [**105]  this agreement J steadily in view, and to watch the progress of events between these parties, to ascertain whether it has been annulled by any subsequent agreement, or is inoperative for any other reason. That it existed in full force and showed the mind of the parties, on the 15th of February 1849, cannot be questioned. The defendant's answer in regard to this agreement is, that it never went into effect, because from the day of its date to that of the deed from Taggart, Davis held possession of the property, so far as related to the copper mine, against him, (Wilson,) and against his own release and assignment thereof to him. The court is at a loss to discover any force in this reason, or to understand how the fact, that Davis, who had assigned all the interest he had in this property to Wilson, and refused to deliver possession to him, could affect Watts' rights under this agreement. At the time it was drawn by Wilson and executed by Watts and him, he knew that Davis was in possession, and, according to Davis' testimony, he and Wilson worked it together for about a month, early in the year 1849--this agreement being executed about that time. It was in fact subject to whatever interest [**106]  Davis had in the premises, and Wilson undertook to procure that interest by assignment from him; and we find nothing in the evidence showing that Wilson made any complaint about this state of things. In his answer to the supplemental bill, he adds some further reason for regarding this agreement as inoperative. He says it was never fully executed by the parties thereto--'the wife of Watts, one of the parties, never signed or acknowledged it;' and further answering he maintains, 'that whatever legal effect it might have been entitled to, yet the force and effect thereof are entirely merged in defendant's exhibit P, filed with the testimony.' Now in regard to these additional reasons, though not in form of, they are in fact amendments to, the answer to the original bill, and suggesting as they do new matter of defence in the knowledge and possession of the defendant when that answer was framed, if they had any intrinsic force it would be very much weakened by that circumstance. Courts of equity are exceedingly slow and reluctant in allowing a defendant to amend an answer in material facts or to change essentially the grounds taken in the original answer, and this reluctance is only overcome [**107]  by very cogent circumstances, and such as repel the notion that the party is attempting to evade the justice of the case or to set up new and ingeniously contrived defences or subterfuges.  Smith vs. Babcock, 3 Sumner, 583. If paper J had anything very serious to apprehend from paper P, the objections just mentioned could be urged against it with great force. Paper P, first introduced into the case as a document filed by the defendant under the commission to take testimony, and which he insists merges agreement J, was executed by Watts on the 1st of June 1849, more than three months, as the defendant alleges, after the date of the former. The original writing from which it was copied by Watts, exhibit AWB, was like all the other agreements in the cause signed by Watts, prepared by Wilson in his own handwriting--a circumstance relied upon in the adjudged cases as convincing proof of overpowering influence and implicit confidence. Wilson, to show the nature and effect of this exhibit, says, that it 'embodies the substance of the original mutilated writing, exhibit No. 1' that the deed 'from Taggart was executed in conformity with the final contract stated in exhibit No. 1. That 'the contract [**108]  of purchase set forth in Watts' petition was affirmed by paper P, and was a confirmation of that original agreement.' Now it is manifest, that paper P does not embody the substance of this mutilated writing, for that was a contract for the sale of 'the whole of Bare Hills, laid out for 90 acres,' and also the 'life-estate of Watts' mother.' Whilst paper P only professes to transfer all Watts' interest in the 'Bare Hill copper mines and the houses and improvements appurtenant thereto, with the reversion thereof as secured' to him. And for the same reason it cannot be pretended, that the deed from Taggart was executed in conformity with paper P, or that it was a confirmation of the original agreement set out in Watts' petition, or that it affirmed that agreement, for they also embraced the whole of the property and not the copper mines only. This character and effect being ascribed to it by way of answer to Watts' allegation, that it was signed by him, at the request of Wilson, and for the sole purpose of being used by him in a trial which was approaching between him and Davis, as he says, in regard 'to the possession of the Bare Hill copper mines;' and it being evident, upon carefully [**109]  considering it, that it is entitled to no such character and effect, is not the conviction forced upon the mind, that it was signed by Watts for the purpose alleged by him, and with the same blind confidence in his supposed friend that he has evinced throughout the whole of these transactions, and that it could not have been intended to rescind agreement J, executed so short a time before, or to affect or impair the arrangement between him and Wilson, as settled by that paper? It does not speak of that paper or profess to touch it in any degree, and as to merging it, it certainly has not the capacity to merge the whole of it. It being then a fact that this trial was pending, and Wilson, for certain purposes known to himself or to his counsel, wanting it to be used at the trial, as he admits he did, and so stated to Watts when he desired him to sign it--is not the true history of it this? viz., that this trial gave it existence, especially when we find the author of it, Wilson, driven, as we have seen above, to such inconsistencies and far-fetched reasons to account for its existence in any other way. He did not want it as evidence of his purchase, for which purpose he says he procured [**110]  it, because he had that, as he insists over and again in his answers, in Watts' petition, which, as he alleges, sets it forth fully. I think then it is perfectly manifest, that paper P was not designed to interfere with agreement J in any manner, much less to supersede or merge it. And have we not the written proof furnished at a subsequent date in Wilson's letter to Watts, on the 22nd of November following, nearly six months after that, agreement J was still in existence, not merged or cancelled by any thing that had been done by these parties? We search in vain amongst the facts in the case for any other agreement to which it can be understood to refer. It mentions an agreement, according to which Watts and wife were to convey one-half of Bare Hill to him, Wilson. This agreement provides for that very conveyance. It has been most earnestly urged by the solicitors for the defendant, that this letter K cannot be relied upon by the complainant to prove any contract in reference to this land to bind the former. It certainly cannot be used to prove what that contract was. But it may be resorted to for the purpose of proving that a contract, such as it mentions, was then subsisting, just [**111]  as their oral admissions might have been adduced for that purpose. But this would not have availed the complainant unless he could have gone further and traced out and produced the very contract or instrument of writing to which the defendant, in his letter, referred, and it appears to the court that this is beyond doubt the contract or agreement to which he had reference in that letter. In setting up paper P against this agreement J to merge and destroy it, the defendant insists, that the complainant is precluded from denying its efficacy as a transfer of the interest it describes and professes to convey, because he alleges that he gave it to Wilson for the sole purpose of being used by him in the trial with Davis; in other words, that Watts was giving Wilson the title for the temporary purposes of the trial, whilst, as the former asserts, the title was really in him, and thus he was joining with him in committing a fraud upon a court of justice, and therefore he cannot set it aside as inoperative and void. Now in reply to this objection it may be said, that according to Watts' theory, Wilson was to have the title to the property until conveyances were drawn defining and limiting [**112]  distinctly their respective interest, and therefore, in signing this writing P, he was doing no more than conforming to the understanding between them, and he no doubt signed it the more readily when informed by Wilson that he wanted it to use it at this trial, presuming therefrom, and that very naturally, that as it was desired for that purpose it would not be used to interfere with agreement J, executed so short a time before by them.

"This court cannot view the conduct of Watts in this transaction in such a light as to insist upon the consequences of a deliberate and premeditated fraud upon the administration of justice, especially, when the party who asks for this sentence, is the individual who planned the fraud and led him into it, if it really be such. Wilson appears, undoubtedly, from what has heretofore been brought to view in this opinion, to have exercised such a degree of influence over him, and to have had his confidence so completely, that he would, in all probability, have signed any paper that he might have presented to him. When this relation and state of things exist between parties, who are even particeps criminis, the law does not refuse to assist and relieve [**113]  the party who has yielded to such influence. Story in 1 Eq. Jur., sec. 300, says, 'where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto, for there may be and often are, very different degrees in their guilt, one party may act under circumstances of oppression, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in guilt;' and he illustrates the distinction by reference to the case of usurious contracts, where the court will give no assistance to the lender, but do not hesitate to relieve the borrower against the usurious contract, although they are both in delicto.

"The objection just considered was attempted to be sustained by the solicitor of the defendant, by reference to the case of The Phil., Wil. & Balto. Rail Road Co. vs. Howard, 13 How., 307. The question there was, whether a party defendant in a cause could repudiate an instrument of writing which he himself had set up in a former cause? The appeal to the Supreme Court of the United States was from the circuit court of Maryland. That court had instructed the jury [**114]  in the case, 'that if the instrument of writing, the validity of the sealing of which the defendant denied, was produced in court and relied upon by it in an action brought against it by a certain party, and that said suit was decided against the plaintiff, upon the ground that this instrument was duly sealed by the said corporation as its deed, then the defendant in this case cannot be permitted to deny the validity of the said sealing, because such a defence would impute to the present defendant itself, a fraud upon the administration of justice.' The Supreme Court in deciding upon this point, say nothing in regard to the question whether this was a fraud or not, but use this language: 'Evidence that the corporation, through its counsel, had treated the instrument as bearing the corporate seal, was undoubtedly admissible, it tends to prove an admission by the corporation, that the instrument was sealed with its seal.' This court cannot say that any fraudulent use was made of this paper, in the trial between Wilson and Davis, much less can it say that the suit was decided against him upon the ground that Wilson held this writing executed by Watts. There is no allegation in the pleadings [**115]  that this was so, nor any evidence on these points, and it therefore does not regard this exhibit as more of an estoppel against Watts than any writing in the cause executed by him. I am therefore satisfied that the interest and estate that these parties were to have in this property, does sufficiently appear from the evidence, and in fact that it is defined by the agreement J.

"Is there then any rule of law, or settled principle of equity, that prevents this court from settling and confirming, in these parties, the title to this property, such as it appears they were respectively to have in it? The solicitors for the defendant insist that there is. They aver that Wilson has the absolute title to it as purchaser, by virtue of the deed from Taggart and the proceedings that led thereto. They plant themselves upon this deed and rely upon it solely in vindication of their title, and have examined but one witness, and him chiefly in regard to his estimate of the value of these mines, in regard to which, his admissions have been so contradictory and inconsistent, that what he has stated in his testimony is entitled to no weight in a court of justice. They have not attempted to rebut [**116]  or explain, by any testimony on the part of the defendant, the powerful and sometimes palpable deductions in opposition to their defence, arising from the varied testimony, written and oral, produced by the complainant. And this seems to be the position assumed by Wilson, himself, with this deed in his pocket when he told Keener, 'Watts has just such an interest as I please to let him have:' this, be it observed, was in reply to the most explicit assertion by Keener of Watts' interest in the property; and Keener's answer to this reply was, 'Not so, I have seen your written agreement as the purchaser of one-half only;' to which, it seems, Wilson made no answer.

"In a court of equity, however, the legal title--the title absolute on the face of the deed and seemingly that of a purchaser--is not always conclusive proof of ownership. It may be, and often is, the mere foundation of trusts, which, whether they appear in the deed or not, may be shown to come within the class called constructive, resulting, or implied trusts, and which are deducible from the nature of the transaction as matter of clear intention, although not found in the words of the parties. 1 Story's Eq., sec. 980.  [**117]  And in regard to the doctrines and distinctions that have been adopted in considering these cases of trust, there are many of them, as this learned author says, sec. 982, 'the creations of courts of equity acting upon the enlarged principles of social justice, ex aequo et bono, rather than express trusts created by the acts of the parties, or an exposition of their declared intentions.'

"The court does not hesitate to declare its firm conviction, that in this class is the case before the court to be found. The evidence impresses upon the transactions between the parties in reference to this property, impliedly, constructively, and as necessarily resulting from them, the character of a trust. And that evidence is deemed altogether sufficient to meet the requirements of the statute of frauds, which has been relied upon by the defendant, in opposition to proof of any trust. For though it requires writing as evidence of the trust, yet, as Story says, sec. 972, 'it does not prescribe any particular form or solemnity in writing, nor that it should be under seal. Hence, any writing sufficiently evincive of a trust, as a letter, or any language in writing, clearly expressive of a trust,  [**118]  will create a trust by implication.' After a careful examination of the authorities, for the purpose of ascertaining the true rule of evidence adopted by courts of equity in such cases, I think I am not mistaken when I say it is this: wherever written evidence can be produced which is inconsistent with the fact, that the party who has obtained the absolute deed is the actual purchaser, further evidence is admissible to prove the truth of the transaction.

"In the case of Leman vs. Whitley, 4 Russ., 423, the court treats this rule as well settled, and quotes Lord Eldon's language in Cripps vs. Jee, 4 Brown's Ch. Rep., 472. 'This written evidence being inconsistent with the fact, that the Rogers were the actual purchasers of the equity of redemption, further evidence was admissible to prove the truth of the transaction.' The court there remarks, 'unfortunately there is here no evidence in writing, which is inconsistent with the fact, that the father was the actual purchaser of the estate.' 2 Story's Eq., sec. 1199, note 1. The chancellor, in the case of Davis vs. Banks, 3 Md. Ch. Dec., 139, shows his estimate of circumstances inconsistent with the idea of a purchase, where the grantee [**119]  relies upon his absolute deed. He says, 'there are circumstances in the case which repel the idea of a sale, and there is, besides, direct evidence of a character so strong, that, in my judgment, no reasonable doubt can be entertained upon the subject.' In the case before the court there are circumstances almost infinitely varied, and the strongest direct evidence in writing, under the hand of the defendant, utterly inconsistent with the fact of a sale to him, and that altogether repel the idea, that he was the purchaser and absolute owner of this property. In this case the complainant has produced abundant evidence in writing, under the hand of Wilson, to prove the facts upon which he relies. But if the testimony were not so full in this respect, he might, under the rule above referred to, having shown in writing that the transaction was not a purchase, resort to all the other evidence in the cause, oral or otherwise, to show precisely what it was intended to be. In Cripps vs. Jee, above referred to, the court says, 'it is clear from the written evidence, that the agreement really made between the parties was not that stated by the deed; will not that be sufficient to let in the parol [**120]  evidence? Here is evidence from the parties themselves, that the transaction was not what the deed purports it to be; this introduces Hunt's evidence,' which was oral; this oral evidence is the further evidence referred to in the above case of Leman vs. Whitley. And this rule seems to have been so understood by the Court of Appeals of this State, in Watkins vs. Stockett, 6 H. & J., 444, where the court says: 'Parol evidence is inadmissible to contradict a written instrument: except where fraud is charged, or in cases of trust, where, in order to get at the real intention of a trust, for the sake of justice and equity, an enquiry will be permitted into the real merits of the case.' The views above expressed show, that the court is not embarrassed by the defendant's objections to the admissibility of the complainant's evidence, in opposition to the title or claim set up in contradiction of the terms of the deed from Taggart, nor by the exceptions taken to the frame and averments of the bill, in that, as the defendant avers, it seeks the specific performance of a contract which it does not set out. The court, in view of the magnitude of the interests involved in this controversy, the [**121]  elaborate manner in which the case has been argued by the solicitors of the respective parties, the perplexing, intricate and involved character of the transactions between the parties, and the many very interesting and important questions of law and fact arising in the case, has given to it much patient investigation and deliberate reflection; in all which it has been actuated by a sincere desire to arrive at the justice and equity of the case, and to decide accordingly between the parties. If it had stood solely upon the ground assumed by the defendant, that he was the purchaser under the deed, entertaining the views expressed in a former part of this opinion, the court would not have hesitated to declare the deed, for such purpose, void; but, inasmuch as the case made by the complainant in the proceedings, shows a case, as this court believes, to which the rule, that 'he who asks equity must do equity,' applies, I shall therefore pass a decree directing the execution of such conveyances as may be necessary to settle the title to this property in these parties, upon the basis of agreement J, and refer the papers to the auditor, with instructions to the auditor to state an account [**122]  of the net profits of the mine since Wilson has had possession of it, subsequently to the date of letter K, (out of which, however, I do not consider him entitled to be reimbursed his payments on account of the mortgage debt,) and the surplus equally divided; and pass such orders as may be necessary to do complete justice between these parties, upon the principles and views indicated in this opinion."

A decree was then passed, adjudging that Wilson held one-half the lands conveyed by the deed from Taggart in trust, attaching simultaneously with the deed, to convey the same to Watts, in fee, with the right to all the crops to be raised on the whole of the lands by Watts, and directing him to make such conveyance forthwith; and further decreeing that Watts is entitled to one-half the net proceeds of all the minerals obtained by Wilson from these lands, since the date of said deed, and directing the auditor to state an account thereof. An injunction was also granted restraining Wilson from selling or carrying away any copper ore heretofore mined by him, or which may now be on said lands, or may be hereafter mined thereon, until the further order of the court.

From this decree [**123]  the defendant appealed.  

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

The complainant, who was the mortgagor of certain real estate which had been authorised to be sold by a trustee to pay the mortgage debt, filed a petition in the case, stating that he had sold the same to the defendant, and the terms of sale, and asking that the trustee might be ordered to report the sale, which was done, and both the complainant and defendant filed a written assent to its immediate ratification. The sale was ratified by order of court, and the trustee executed a deed conveying the mortgaged property to the defendant. HELD:

Per LE GRAND, C. J.: That the complainant being compos mentis, and knowing what he was doing at the time, cannot have relief in equity against these proceedings, upon the ground that the transaction was fraudulent, and that it was never the intention of the parties that the defendant should thus acquire a title to the whole property, but only to a part of it under a secret unwritten agreement between them, because, by his own showing, he united with the defendant in the practice of a fraud upon a court of justice.

Per MASON, J.: That on failure of proof that the defendant practiced a fraud upon the complainant in inducing him to sign the application to the court to have the sale reported and ratified, the latter cannot set up in a court of equity a secret or private understanding between them, that defendant was eventually to have but a part of the property, in opposition to the statute of frauds pleaded and relied on by the defendant.

Where it cannot be shown that the contract had its inception in the fraud of the party against whom the relief is sought, but that he is merely making a fraudulent use of the statute to keep an advantage, obtained through the reliance of the opposite party on his good faith and fair dealing, no relief can be granted. Per MASON, J.

As a general rule, fraud vitiates all things in a court of equity, but when both parties to the suit have knowingly participated in the fraud, all relief as between them will be denied, and the maxim, in pari delicto potior est conditio defendentis, must prevail.

Where a party asking relief does not pretend ignorance of the character of the paper which he signed, and there is no fraud or mistake, a court of equity will not give a different meaning to the paper from that which its language imports.

In the absence of all fraud and imposition, equity will not set aside a bond for the weakness of the obligor alone, if he be compos mentis, there being no such thing as an equitable incapacity where there is a legal capacity.

Where a mortgage is executed under the act of 1826, ch. 296, the authority to sell is derived from the bond of the trustee and the power of attorney executed to him by the mortgagee, and not, primarily, under a decree of a court of equity as in other cases.

But where the sale is reported by the trustee, the jurisdiction of the court becomes complete, and equitable principles, such as are applicable to sales under decrees in other cases, prevail, and a sale without public notice may, therefore, upon consent of the parties in interest, be ratified. 

COUNSEL:
E. G. Kilbourn and Wm. Schley for the appellant, argued:

1st. That the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court in the case of Hook vs. Watts, because he is estopped by his petition signed and filed in that case, his written consent to the ratification of the sale, and the decree thereon, and no parol or written evidence can have the effect of adding to, altering or varying that decree. The proceedings in that case are conclusive, (2 H. & G., 42, Raborg vs. Hammond; 5 Gill, 277, Tomlinson vs. McKaig; 2 How., 58, Shriver vs. Lynn; 10 Pet., 470, Voorhees vs. Bank of the U. S.,) and the appellee cannot be heard to make any averment against the record in that suit. Watts went into court and averred that he had sold this mortgaged property to Wilson for $ 2100; the sale was reported upon his petition; its ratification was assented to by him, and the order ratifying it was passed in consequence of this assent. Can he then be heard to make any averment against the status shown by that record? His bill does [**124]  not attempt to do so, and it cannot be done. 44 Law Lib., 430, 435, 440, Doe vs. Oliver. 3 East, 346, Outram vs. Morewood. Wilson would clearly be estopped by these proceedings from saying that he did not buy the property, and is not Watts equally estopped from saying he had not sold it? Again, Watts is estopped upon grounds of public policy. He comes into court and defeats Tyson and Davis by giving Wilson a title paramount to theirs, and now says that these proceedings were all fraudulent, that what he stated in his petition was all false and asks relief against his own acts, in which, if there was any fraud, he was clearly particeps criminis. Can he commit such a fraud as this upon the administration of public justice and then ask relief from its consequences? The case of the Phil., Wil. & Balto. Rail Road Co. vs. Howard, 13 Pet., 324, 337, presents the very point in this case. If the claim now set up be valid, the act of Watts was a fraud upon Tyson, upon Davis, and upon the administration of justice. If Wilson be guilty, Watts is particeps criminis. Nemo allegans suam turpitudinem est audiendus, and it will not do to say that Wilson is equally guilty, for then the maxim, in pari [**125]  delicto potior est conditio defendentis, prevails. 6 Gill, 28, Freeman vs. Sedwick. Again, he is estopped by his acts and declarations in pais, inconsistent with the title now asserted by him, and inconsistent with the dictates of common honesty. 1 Smith's Lead. Cases, 446. He has acknowledged that the whole premises belong to Wilson, by issuing his warrant as justice of the peace against Davis, in which the premises are described as the property of Wilson, and by sitting in judgment in that very case as magistrate.

2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it; and the proof in this case shows, that the petition and consent, above referred to, were voluntarily signed by Watts with a knowledge of their contents, and he cannot, therefore, be permitted to prove a different intent from that plainly declared in those instruments. 2 Md. Rep., 25, McElderry vs. Shipley. 2 H. & G., 34, Lowry vs. Tiernan. That Watts was competent to execute these papers, is proved by the very witnesses introduced to show his want of capacity and feebleness of intellect.

3rd. That paper P, the consent [**126]  to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J, and, therefore, neither agreement J or any prior transactions can have an injurious influence upon Wilson's title under the sale by Taggart as trustee, and the deed from him in pursuance thereof.

4th. The above points, if decided in our favor, dispose of the case, but we have excepted to the sufficiency of the averments of the bill and the admissibility of the evidence, and now insist, that though the decree establishes, as against Wilson, a trust attaching simultaneously with the deed from Taggart, yet no such trust is averred in pleading or sustained by any competent evidence in the case. Agreement J does not prove any such trust. It obliges Watts and wife to convey one-half the farm to Wilson, and certainly does not look to the acquisition by Wilson of the title to the entirety of the farm, and a subsequent conveyance of one-half to Watts; its plain meaning cannot be added to or varied by parol, nor can any parol contract be set up in opposition to the statute of frauds. 1 Gill, 383, Hall vs. Hall. 7 Ves., 211, Woollam vs. Hearn. 71 Law Lib., 558, 574. 2 Mylne & Keene,  [**127]  251, Croome vs. Lediard. 6 H. & J., 252, Lamborn vs. Watson. Ibid., 422, Lamborn vs. Moore. Letter K not being signed by Wilson, the party to be charged cannot be used as evidence of the alleged trust so as to control the deed from Taggart, and there is no such proof as will connect this letter with agreement J. 11 G. & J., 314, Moale vs. Buchanan. 7 G. & J., 157, Maccubbin vs. Cromwell. Willis on Trustees, 44. Whilst paper J proves, undoubtedly, a sale by Watts and wife to Wilson of only one-half of the farm, at that time, it certainly does not preclude the possibility of showing the acquisition by Wilson to the other half between its date and that of the deed from Taggart, and we insist, that the ownership of the entirety by Wilson is conclusively established by the acts and declarations of Watts, detailed in the evidence, and by paper P, and is not disproved by letter K, or any other competent evidence in the case. Again, the bill seeks specific performance, and in such case the terms of the agreement sought to be enforced must be set out with certainty, (3 Ves., 420, Walpole vs. Orford; 2 Md. Rep., 375, Faringer vs. Ramsay; 3 Do., 490, Ches. & Ohio Canal Co. vs. Young; 2 Story's [**128]  Eq., secs. 764, 767,) and where specific performance is sought of a particular contract, (agreement J for instance,) no other contract not identical can be enforced. 1 Johns. Ch. Rep., 132, Phillips vs. Thompson.

5th. But, apart from other considerations, the decree is erroneous in many particulars:--1st. Even if the alleged trust can be established, the decree is erroneous in not providing for the repayment by Watts to Wilson of the whole, or at least one-half, the amount paid in satisfaction of the mortgage. In the opinion of the court below the right to reimbursement is expressly denied. Now paper J certainly does not prove that the agreement to convey the one-half to Wilson was dependent on the future payment by him of the mortgage debt, costs, &c., and there is no proof to justify the conclusion, that the consideration for the sale of the one-half mentioned in paper J was the payment of the mortgage debt and costs. Even if Wilson is to be deemed as a purchaser of one-half, subject to existing incumbrances, the parties ought to contribute pari passu in discharging the incumbrances. 2nd. If Wilson's title is to be regarded as derived solely by contract with Watts, for one-half,  [**129]  and he acted merely as agent or in trust for Watts in obtaining the deed from Taggart, then, even as to one-half, Wilson is not owner as purchaser under the mortgage, and as between him and Mrs. Watts his half is liable to her potential right of dower. The decree, therefore, ought to have provided, as a condition to the relief granted, that whilst the interest of Wilson was reduced to a moiety in pursuance of agreement J, that the husband should procure the concurrence of the wife in conveying to him such half as expressly provided by that agreement. 3rd. The decree requires Wilson to account for all the net profits of the mines since the date of the deed from Taggart, (20th of November 1849,) whereas it is conceded that he acquired from Davis and Tyson the right to work the mines up to the 10th of July 1850, and the bill shows that he did work them before that time. The decree in this respect, therefore, is clearly erroneous.

6th. As to the other objections: that in regard to fraud has been already answered,--the fraud is not sustained by the proof, and if there was any in the transactions Watts was particeps criminis. As to the inadequacy of price: there is, we insist, no proof [**130]  of such inadequacy as to warrant the court to set aside the sale for this reason alone--the mines were not as valuable as supposed--Davis was completely ruined by working them--Tyson could have bought the whole at the time of the sale to Wilson for $ 3000, and would not give it. But it is said, that as the sale was a private one the court had no jurisdiction to pass the order ratifying it, as it did in the case of Hook vs. Watts; that the proceedings in that case were not in conformity with the act of 1826, and therefore the decree ratifying the sale was coram non, and is of no effect. To this we reply, that a decree of a court of equity can be impeached for fraud, but not collaterally. 2 Md. Ch. Dec., 370, McDowell vs. Goldsmith. That if there are any irregularities they cannot affect the title under the decree; all that is necessary is, that the court passing it should have jurisdiction of the subject matter, (10 G. & J., 183, Comegys vs. The State; 5 Gill, 275, 277, Tomlinson vs. McKaig,) and this they had in the present case, at least as soon as the sale was reported by the trustee, and when so reported, even though a private sale, the court had the power to ratify it upon consent [**131]  of the parties in interest.

John C. King and J. M. Campbell for the appellee, argued:

1st. That the proceedings in the case of Hook vs. Watts, and the deed from Taggart, constitute no estoppel to the relief asked in this case. The answer of Wilson inflicts a fatal blow to his title under the act of 1826, for he says the sale was not made by the trustee as a sale under the decree and act of 1826, and that the deed was not executed as a deed by the trustee under the decree, but that the sale was made by Watts in pursuance of an agreement between the parties, and that the deed was executed under the same agreement, so that if there be no valid agreement there is no valid deed. The answer, therefore, tenders an issue upon matters outside of the record in that case, and this is fatal to the plea of estoppel. The deed professes to be given according to the act of 1826, when, in reality, it was given in direct opposition to the terms of that act, which requires a public sale. "A sale of property in any other manner that that prescribed by law vests no title in the vendee." 4 Dana, 179, Campbell vs. Johnston. "A power of sale will be declared void for the slightest unfairness, or [**132]  anything that prevents competition." 3 Gilman, 42, Longwith vs. Butler. The act of 1826 being special, any title claimed by virtue of the act must be in strict conformity with its provisions.

2nd. The answer having thus presented an issue outside of the record in the case of Hook vs. Watts, the title of Wilson must depend upon the contract set up in his answer, and if that is struck down by fraud, the deed made in pursuance of this contract must fall with it. The answer places the defendant's title upon his exhibit No. 1, which he alleges was consummated in the deed. The first inquiry then is, whether there ever was such a contract as this paper purports to set forth? The answer swears to it, but there is no signature, and Wilson says, in his answer, that Watts' name, not his signature, has been torn or cut from it. Who tore or cut it out? and for what purpose was it done? and when? The attesting witness is not called, and his name is proved by Keener not to be in his handwriting. It was a very easy thing to have proved his signature if it was genuine. The paper itself is wholly wanting in all the requisites of a valid contract. It is produced by the party pleading it, it is in [**133]  his own handwriting, mutilated, and without any explanation for its absence. And this is the paper which is to sweep from Watts the entire fee-simple estate in his whole property, leaving not a vestige of interest in him--a paper mutilated, with the signature of the attesting witness forged upon it; nay more, a paper which Wilson himself, by his numerous letters running through the period of three years from its date, repudiates and ignores, if there be in human language any meaning whatsoever. Each one of the ten letters from Wilson to Watts, all dated subsequent to this pretended contract, gives the lie to its existence and stamps the answer with falsehood.

3rd. But suppose this paper once had an existence and the form of a legal contract, has it any validity? We say none whatever. It is in the first place void of mutuality--Watts agrees to sell but Wilson does not agree to pay. But this contract is destroyed by the confidential relation between the parties. Before the court can examine any contract between them it must look to the relation in which they stood to each other, and this is the controlling question in this cause. Before examining the evidence let us see what the [**134]  law is on this point. The general principle which governs all cases is, if confidence is reposed and that confidence is abused, equity will grant relief, (1 Story's Eq., secs. 221 to 236, 308, 319; 3 Mylne & Keene, 113, Hunter vs. Atkins; 5 Blackf., 509, McCormick vs. Malin; 6 Ves., 267, Gibson vs. Jeyes,) and it is not necessary to show fraud where confidence is reposed, (2 Brown P. C., 183, Stanhope vs. Toppe; 2 Gill, 83, Brooke vs. Berry,) nor is it necessary that the relation should be a formal one, as that of attorney and client, guardian and ward, or trustee and cestui que trust. Now what was the relation of these parties at the time this alleged contract was entered into in 1846? The evidence clearly shows that Watts was poor and in very distressed circumstances; his property was mortgaged and about to be offered for sale to satisfy the debt; his whole means of subsistence was about to be taken from him; he was unaccustomed to business, his mind was weak and easily influenced. Under these circumstances he meets with Wilson, who came forward and proffered his assistance to save his property from sacrifice; he offered to take up the mortgage and went to Taggart to stop the sale;  [**135]  he openly acted and proclaimed himself the counsellor and friend of Watts, and avowed his determination to protect him. By these acts and proffers of friendly assistance he gained the confidence of Watts, who trusted him as his only and best friend. By these means he acquired an influence over the mind and will of this weak-minded, distressed man, such as the strong possess over the weak, the wealthy over the poor. Watts trusted him and believed that through his assistance he should be saved from ruin, and his property redeemed from sacrifice. Who can believe that under such circumstances a contract was deliberately made between these parties, by which the property of Watts was not only not prevented from being sacrificed, but was sold to Wilson for but a few dollars more than the mortgage debt? And if it was made, what court of equity would sustain and uphold it? If this contract be valid, then the very thing Watts was endeavoring to prevent, and which Wilson promised his aid in accomplishing, was effected. So far from escaping a sacrifice, he was both sacrificed and duped. Against such an abuse of confidence the law has wisely provided a remedy. If a person is of feeble understanding [**136]  and the bargain is unconscionable, what better proof can one wish of its having been obtained by fraud or undue influence, or by the power of the strong over the weak. 1 Story's Eq., secs. 221, 222, 235, 236. This weakness need not amount to such as to require a commission of lunacy; a degree of weakness far below that, coupled with other circumstances, to show that the weakness, such as it was, was taken advantage of, will be sufficient to set aside any important deed. 1 Story's Eq., sec. 237. 1 Knapp, 78, Blackford vs. Christian. 5 Blackf., 530. 4 Dessau. Eq. Rep., 651, Butler vs. Haskell. Parol proof may always be introduced to prove fraud, and this need not be done by direct proof, but it will be inferred from all the facts and circumstances of the case. 2 H. & J., 288, Brogden vs. Walker. 2 Gill, 122, Jones vs. Belt. Ib., 98, Brooke vs. Berry. The whole evidence in the case shows that there was this confidential relation between the parties, which Wilson has fraudulently availed himself of for his own advantage.

4th. Another ground on which this alleged contract is impeached, is the unfairness of the transaction or the inadequacy of price. This contract, if it ever existed,  [**137]  is the most barefaced and unqualified robbery that was ever perpetrated since the beginning of time. These mines were worth, in the opinions of the witnesses, from $ 6000 to $ 20,000. Tyson offered $ 4000 for sixteen acres of the land, exclusive of one-fifteenth of the ore raised from the mines. Wilson himself represents them in the hearing and presence of Watts as invaluable, says there is no knowing what they are worth, that they would be a fortune to Watts, and that they should not be sacrificed. The actual sales from the mines for two years exceeded $ 25,000, yet Wilson now says he purchased the whole property for $ 2100, a sum but little exceeding one-half what Tyson offered for sixteen acres of the land. Is this a contract that a prudent man would make? is it fair, just and reasonable? Where the transaction is such as to be inconsistent with the sober manner of a man's transacting his affairs, inadequacy of price is strong evidence of fraud. 1 Story's Eq., secs. 244, 246. 2 Madd. Ch. Rep., 568, Copis vs. Middleton. This is especially the case where one of the parties is laboring under distress. 1 Story's Eq., secs. 234, 239. If it could be doubted whether any of the views taken,  [**138]  separately considered, is sufficient to entitle the complainant to the relief he prays, that doubt must vanish before this combined force. A treaty respecting an important interest, entered into between persons of very unequal powers, one with a naturally unsound judgment, the other enterprising, keen and sagacious in business, the weaker mind trusting in the stronger, that influence increased by pecuniary distress on the one side and pecuniary power on the other, and resulting in a contract exhibiting great inadequacy of consideration; a treaty thus characterised presents claims to relief which a court of equity cannot withstand. 5 Blackf., 530; and to the same effect, 1 Munf., 557, Whitehorn vs. Hines. 6 H. & J., 445, Watkins vs. Stockett. 11 G. & J., 1, Glenn vs. Clapp. 7 G. & J., 157, Macubbin vs. Cromwell.

5th. But it is insisted, that paper P confirms and supports the title of Wilson under paper No. 1 and his deed. Wilson says it embodies the substance of the original mutilated agreement No. 1. But the truth is it does no such thing. Paper No. 1 was a contract for the sale of the whole property, including the life-estate of Watts' mother, whilst paper P only professes to [**139]  convey Watts' interest in the property. But what is this paper P, and what effect is it to have? Though in Wilson's possession, it was not mentioned or relied on in his answer to the original bill. Every circumstance connected with it only makes the fraud more glaring. No consideration was given for it. If Wilson had paper No. 1 in 1846, where was the necessity of executing another in 1849, to do exactly the same thing in a less effective mode? It is in Wilson's handwriting, brought by him to Watts, who merely acted as Wilson's amanuensis in copying it, and is tainted with the same defect as all other contracts between these parties.

6th. The contract, moreover, is in no way confirmed by the decree or order of the court in the case of Hook vs. Watts, ratifying the sale passed three years after the alleged contract of sale:--1st. Because all the facts and circumstances urged against the validity of the contract can be relied upon against the decree, and equity grants relief not only against deeds, writings and solemn assurances, but against judgments and decrees obtained by fraud and imposition;--a decree based upon a fraudulent contract is no better than the contract. 2 Johns.  [**140]  Ch. Rep., 252, Reigal vs. Wood. Mitf. Ch. Pl., 112, 114. 1 Story's Eq., sec. 252. 2 Do., sec. 1522. Amb., 229, Bradish vs. Gee. 2nd. The same influence prevailed over Watts' mind at the passing of the decree as at the time of the contract. Several deeds executed at large intervals should not prevail as confirmations, the party being throughout under the same influence, control and ignorance of his rights, and every instrument signed under the same blind confidence. 14 Ves., 91, Purcell vs. McNamara. 4 Dessau., 651. 2 Gill, 107.

7th. We come then to consider what was the true agreement between these parties. This, we insist, was agreement J, which is conclusively affirmed by the letter of the 22nd of November 1849, from Wilson to Watts, written on the very day of the date of the deed from Taggart. It requests Watts to come in and deed to Wilson one-half of the Bare Hill farm according to agreement. This letter shows, that paper J was the true and real agreement between the parties, and is the basis of the relief which we ask and which was granted by the court below. It is true the letter of November 22nd, 1849, was not signed by Wilson, but it is admitted to be in his handwriting,  [**141]  and if not evidence of a trust, is still written evidence of what the contract between him and Watts was. We therefore submit, that the decree granting relief upon the basis of paper J should be affirmed.

The judges delivered separate opinions, CHIEF JUSTICE LE GRAND and JUSTICE MASON concurring in a reversal of the decree, and JUSTICE ECCLESTON dissenting.  

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

OPINIONBY:
LE GRAND; MASON 

OPINION:

 [*454contd]  

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LE GRAND, C. J.
I dissent from the conclusions arrived at by my brother ECCLESTON, in the very full and elaborate opinion he has given in this case. But few words will be necessary to point out the grounds on which rest that difference, In my opinion, on legal principles, there ought not to be the slightest difficulty in reversing the decree of the circuit court. And all that can arise, in any aspect of the case, grows out of an association with it of matters which have, according to well known and universally acknowledged [**142]  decisions, nothing whatever to do with the questions involved.
What is the case? The complainant alleges, in substance, 

 [*455]  that a fraud has been practiced upon him by the appellant; and in this: That the defendant induced him to consent to the purchase, by the defendant, of certain property belonging to him, and which had been authorised to be sold by a trustee to secure the payment of a mortgage debt with which it was encumbered; that in pursuance of this inducement, he did consent, and, accordingly, as is shown by the record of proceedings in the cause, he, by petition, asked the court to ratify the report of the trustee setting forth such sale--which was done, and in conformity therewith, a deed for the property was made by the trustee to the defendant. The complainant alleges this was a fraudulent transaction, and that it was never the intention of the parties, the defendant should thus acquire a title to the whole property. The bill asks that the decree of Baltimore county court, ratifying the sale to the defendant, may be annulled and the deed of the trustee declared void, and for an account of the profits, &c.
The complainant does not pretend he did not know,  [**143]  when he signed the petition to the county court, what he was doing.
The case now sought to be made for him is, that the defendant being of superior mind, and exercising great control over him, because of his supposed friendly feeling, induced him (intending to defraud him) to consent to the report of sale, and its ratification by the court.
There is no direct proof whatever, of any secret understanding between the parties, that the transaction should not be what it appeared on its face to be; and the existence of any such is positively and unequivocally denied by the defendant, as is also all contrivance, &c., to defraud the complainant.
Now it is conceded (and it could not be well denied) by my learned brother, that no relief would be granted to a complainant so situated; unless the transaction be tainted with fraud.
The general principle being admitted, the only inquiry remaining is: Is there such fraud, if any, in this case, as will take it out of the unquestioned and undeniable general principle?

 [*456]  As a general rule, fraud vitiates all things in a court of equity. But this rule has its limitations. It is the wisdom and the policy of the law, to protect [**144]  the innocent and helpless from the bad practices of the evil and fraudulently minded; and whenever a proper case presents itself, relief is never withheld.
One of the exceptions to the general rule, (and the one which in my judgment governs this case,) is, that where both parties to the suit have knowingly participated in the fraud, all relief, as between them, will be denied. The maxim, in pari delicto potior est conditio defendentis, is everywhere acknowledged and enforced.
If this rule be applied, how stands this case? Thus: The complainant, according to the facts alleged by himself in his bill, unites with the defendant in the practice of a fraud on a court of justice, and now asks that a court of equity--the fraud having been consummated--will remit him to rights which he claims were by force of a secret, unwritten agreement, reserved to him. It cannot be done, unless every decision heretofore made on analogous cases be set aside or overruled. It may be safely averred there cannot be found, save one--and that was by a divided court--a decision, either in England or in this country, in which relief was granted in a case similar to this. The fact is, the whole [**145]  matter has been most completely and decisively settled by the adjudications of the highest tribunals of this State.
In the case of Freeman and Sedwick vs. Sedwick, 6 Gill, 28, one infinitely stronger than that now before us, the court recognize and adopt the rule, that relief will never be granted where the parties are in pari delicto. That was the case of one brother conveying his property to another, to keep it out of the reach of the creditors of the grantor, accompanied by another agreement in writing, although to be considered secret, obliging the grantee to reconvey in a certain contingency. What said the court, when asked to enforce by decree the agreement to reconvey? It refused to do so, and on the obvious ground of public policy, that those who enter into fraudulent contracts, so far as they are concerned must abide 

 [*457]  the consequences. In the case to which I refer, the principal authorities in England and this country are reviewed, and all shown to inculcate and establish the doctrine I have already indicated. It is not necessary to re-state them here. They will be found fully and accurately set out in the volume of Reports to which [**146]  reference has been given.
As had been stated, the complainant does not pretend ignorance of the character of the paper which he signed. The case of McElderry vs. Shipley, et al., 2 Md. Rep., 25, shows, that in such a case a court of equity will not give a different meaning to the paper from that which its language imports; so that, were it competent by parol to show the parties intended something other than that expressed, the instrument would not be reformed. Of course I allude to a case in which there was an absence of mistake or fraud.
These views, in my judgment, fully dispose of this case. But it is said, the complainant at the time of the transactions was of a weak mind, liable to be easily imposed upon by the cunning and knavish, and because of this mental imbecility, readily became the dupe and victim of the defendant.
In what this imbecility consisted does not appear. While it can be clearly deduced from the evidence in the cause, that some of the witnesses entertained no very high opinion of his "financiering" abilities, it is also clearly shown by the proof, that he was not non compos mentis, and that, he transacted his own business, gave [**147]  deeds and leases, and mortgages, and acted for years as one of the judges of the district courts of his county. The language of Judge Archer, in the case of Watkins vs. Stockett, 6 H. & J. 435, is very pertinent to this branch of the case:--He says: "It was observed by a distinguished jurist, Sir Joseph Jekyll, that where a weak man gives a bond, if there be no fraud nor breach of trust in its obtention, equity will not set aside the bond, for the weakness of the obligor alone, if he be compos mentis. Nor will a court of equity measure the size of men's understanding and capacity, there being no such thing as an equitable incapacity where there is a legal capacity. This is undoubtedly the 

 [*458]  safest doctrine, where there is a total absence of all fraud and imposition."
It must be borne in mind that this is a case between the parties, and only the parties, to the alleged fraud. Were it a case between the creditors of the complainant and the defendant, a different class of principles would be applicable. In the latter case, the creditors would not be estopped by any fraudulent act of either the complainant or defendant, but would be at full liberty to inquire [**148]  into the whole transaction.
For wise purposes--and the experience of centuries has demonstrated the wisdom--the law has established certain, fixed, and inexorable principles for the administration of justice, for the protection of the rights of property, and for the ascertainment of truth. These are not lightly to be departed from. If they are to be disregarded in one instance, why not in all?
The indulgence of mere sympathetic feeling, however honorable to the instincts of human nature, furnishes no excuse for such judicial partiality. There is no canon of the law of more universality than, omnis innovatio plus novitate perturbat quam utilitate prodest; and, in a commentary on it, a very learned writer very properly remarks: "It is an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter [**149]  or vary from according to his private sentiments." And again, "If, as has been observed, there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a court of justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than, upon those particular circumstances, to deviate from a general rule of law."
In the case before us the party complaining knew what he was doing; he does not even pretend ignorance. To him should be applied the language of Lord Chief Baron Richards, 

 [*459]  in Roberts vs. Roberts, 4 Eng. Exchq. 448. That was a case in which a bill was filed for the purpose of setting aside a voluntary demise of certain hereditaments for a term of years, executed by the testator, in his lifetime, to the defendant, to kill game. In his opinion the judge said: "I do not think the plaintiffs are entitled to a reconveyance; the deed was executed maturely; the grantor knew the effect of it. There was no fraud, at the time, between the brothers; with respect to them the transaction was perfectly fair. But it appears by the evidence that the object [**150]  of the deed was to give the defendant the appearance of a qualification, and that it was executed for no other purpose; that was a fraud on the law, and I cannot perceive what right that gives the plaintiffs to come into a court of equity to call for a reconveyance."
It was suggested, in the course of argument at the bar, that the county court had, under the circumstances of the case, no jurisdiction under the provisions of the act of 1826, chapter 296. In this opinion I cannot concur. Although under that act the authority to sell is derived from the bond of the trustee, and the power of attorney, executed by the mortgagee, and not, primarily, under a decree of a court of equity, as in other cases, yet the jurisdiction of the court becomes complete on the report of the sale. When this is once made, the equitable cognizance of the court obtains, and thereafter equitable principles, such as are applicable to sales under decrees in chancery, control the disposition of the case; and, according to these, it is the well established practice for courts of equity to ratify sales, made without public notice, whenever the parties in interest shall signify, in writing, their assent [**151]  to such a purpose. The case of Andrews vs. Scotton, 2 Bland, 629, is sufficient authority for this doctrine.
For the reasons given, I am of opinion, the decree of the circuit court ought to be reversed and the bill dismissed.
MASON, J.:
I frankly confess I have had great difficulty in coming to a conclusion in this case, and I would be the better satisfied if the result to which I have at last arrived, was as firmly sanctioned 

 [*460]  by my own mind, as my conclusions usually are. The difficulty with me grows out of the circumstance, that the proper application of the statute of frauds, which Chief Justice Buchanan has said, "probably generates as many frauds as it prevents," leads to results, in this particular case, which are repugnant to sound morals and fair dealing.
The evidence has failed to satisfy my judgment, that the defendant, Wilson, practiced a fraud upon the complainant, in inducing him to make the application to the court to have the sale of the trustee reported and ratified in the proceedings upon Hook's mortgage; in other words, that Watts was induced to do one thing in that matter, under the influence of Wilson's deceptions, while he supposed [**152]  he was doing another. While I am satisfied that the ratification of the sale to Wilson was made with the full understanding and knowledge of Watts as to the nature of the transaction, yet I am equally clear that there was a secret or private understanding between them, that Wilson was eventually to have but one-half of the property and Watts the other, an understanding which Wilson, in bad faith, now refuses to recognise.
While Watts has been, in this particular, made the victim of misplaced confidence in Wilson, there is no power in this court to grant him relief. If I am correct in the conclusions to which I have come in regard to the facts of this case, the law regulating such a state of case is plain and well settled. Where it cannot be shown that the contract had its inception in the fraud of the party against whom the relief is sought, but that he is merely making a fraudulent use of the statute, to keep an advantage obtained through the reliance of the opposite party on his good faith and fair dealing, no relief can be granted. The principle is broadly sanctioned by Chief Justice Buchanan, in delivering the opinion of this court in Lamborn vs. Watson, 6 Har. & John. [**153]  252. He there says: "The action is not founded on deceit, &c., practiced by the defendant, by which the plaintiff was tricked into a false confidence, and seduced into a contract by which he has lost his property; but on a verbal agreement respecting the sale of lands, not sought for, or moving from the defendant, but procured by 

 [*461]  the plaintiff himself for his own purposes, on which, without overturning the statute of frauds, an action at law will not lie." And again he says: "But they cannot entertain actions upon verbal contracts within the statute, on the ground of fraud, in refusing to perform them; if they could, it would be to permit a plaintiff, in the shape of an action on the contract, to recover in damages, not for the breach of the contract as such, but for a fraud subsequently conceived, and on which the action was not founded, as is attempted in this case, which would be to amend the statute in relation to such contract."
The same doctrine was held in Lamborn vs. Moore, 6 H & J., 422. Our brother ECCLESTON, in his opinion in this appeal, also sets out the same principle correctly, not agreeing however in its application to this case. See also the notes [**154]  to the case of Wollam vs. Hearn, (White & Tudor's Eq. Cases, 355,) 71 Law Lib. 540. The same principle is recognised in Wesley vs. Thomas, 6 Har. & John. 24, and McElderry vs. Shipley, 2 Md. Rep., 25, where this court announce broadly that parties must be bound by the language with which they may think proper to express themselves, in a deed or other instrument.
The statute of frauds is as binding in equity as it is at law, and therefore the fact that the relief is sought in this case in a court of equity does not vary the principle.
If the views I have taken in regard to the facts of this case be correct, the defendant, Wilson, has very justly made himself liable to the severe animadversions directed by Judge Buchanan, in Lamborn vs. Watson, against the defendants in that case, as well as those of our brother ECCLESTON in his opinion in this case against the present defendant, but as we cannot grant the complainant the relief he seeks, a moral castigation upon the defendant would do but little to heal the wounds which he has sustained in his property and rights.
Notwithstanding it might have been understood between these parties, that [**155]  while Wilson was to appear from the proceedings to have purchased the entire estate, he nevertheless, by a secret agreement, was only to have one-half, I do not think that such an understanding would amount to such a fraud upon the court as to place the parties in pari delicto. 

 [*462]  The only parties interested in the proceedings to foreclose the mortgage were the creditor and the mortgagor. The power of the chancery court was invoked only to enforce the payment of the mortgage debt, and to protect at the same time the rights of the debtor. Any arrangement, therefore, which would produce these two results, though in a way somewhat different from that employed by the court in its usual course of proceeding, could hardly be deemed a fraud upon the court, or upon any party having an interest in the matter. Watts, himself, could not be said to be defrauded, if he participated in the arrangement, knowing what he was doing; nor was the creditor, because, by it, he obtained his money; nor was the court, because its powers and functions were not perverted from their legitimate purposes, but were permitted to perform their office in securing to the creditor the fruits of his debt.  [**156]  
Concurring with the Chief Justice in the conclusions to which he has arrived, but not in all the reasons he assigns, the decree must be reversed and the bill dismissed. Under the peculiar circumstances however of this case, and as the subject of costs is under the unrestricted discretion of the court, I think the appellant should pay all costs in both courts.
Decree reversed and bill dismissed. 

DISSENTBY:
ECCLESTON 

DISSENT:

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ECCLESTON, J.:
Before looking into the evidence in this case, I will examine the principles, chiefly relied upon by the appellant, as grounds of objection to the correctness of the relief granted to the appellee by the decree appealed from.
1st. It is said the appellee cannot deny the title of the appellant to any portion of the estate purchased by him, under the sale ratified by the order or decree of the court, in the case of Hook against Watts, (the appellee,) because his petition, signed and filed in that case, his written consent to the ratification of the [**157]  sale, and the decree thereon, will estop him. And no parol or written evidence can have the effect of adding to, altering or varying that decree.
2nd. That a party voluntarily choosing to express himself in the language contained in a deed, or other written instrument, must be bound by it. And the proof in this case shows, that the petition and consent above referred to were voluntarily signed by Watts with a knowledge of their contents. He therefore cannot be permitted to prove a different intent from that plainly declared in those instruments.
3rd. That the paper marked P, the consent to the ratification of the sale, and the decree upon it, merged all previous negotiations, including paper J. And therefore, neither agreement J or any prior transactions can have an injurious influence upon the appellant's title under the sale by Taggart, the trustee.
In the absence of fraud and mistake, these three positions contain sound legal principles; but no matter how closely the door may be shut and supposed to be securely locked for concealing fraudulent transactions, it may, nevertheless, be opened by the magic key of a court of equity, for the purpose of exposing to examination the illegal [**158]  and inequitable instruments and acts intended to have been concealed.

 [*433]  A judgment or decree, based upon fraud or imposition, is no less subject to the control of a court of equity than a deed or other contract.
In Hall & Wife, vs. Hall, et al. 1 Gill 383, Judge Dorsey says, "no principle is better settled, than that by no device or form of proceeding or solemnity of the instruments, or means used for its perpetration or concealment, can you deprive a court of equity of the power of 'unkennelling a fraud.'" See also page 387.
In Pickett vs. Loggon, 14 Ves. 234, Lord Chancellor Eldon says: "As to the fine it has long been settled, that if a conveyance by lease and release, or bargain and sale, has been obtained by means which in this court have the character of imposition, fraud, oppression, or undue advantage, a fine constituting part of that assurance, which is so affected, whatever may be the effect at law, is no bar to relief in equity. The person deriving a title under it is a trustee, and the species of relief is by directing a reconveyance." See also Bowles vs. Orr, 1 Young & Coll. 473, (Exchequer in Equity.) [**159]  1 Madd. Ch., 300, and 5 Gill 277, Tomlinson, et al., vs. McKaig, et al.
The appellant's counsel have relied, with much confidence, upon the second principle above stated, and seem to think it must entitle them to claim a reversal upon the authority of Wesley vs. Thomas, 6 H. & J., 24, and McElderry vs. Shipley, et al., 2 Md. Rep., 25. In each of those cases, however, when the court announce that a party is to be bound by the language in which he voluntarily chooses to express himself in a deed, they mean, of course, such voluntary choice as the law considers a sufficiently free exercise of will to constitute the deed a valid instrument, in the absence of fraud; but they surely had no reference to a contract executed under an undue or fraudulent influence. An act done under an influence arising from misplaced confidence, will not, in a court of equity, be considered a voluntary act resulting from choice. 1 Story's Eq., secs. 221, 222.
In the first case, at page 27, the court say: "It is most true that the court of chancery in the exercise of its moral jurisdiction, 

 [*434]  as it has been emphatically termed, will upon the [**160]  proof of fraud, mistake, or surprise, raise an equity, by which the agreement of the parties shall be rectified." The decision was made in 1823, and the complainant could have no relief on the ground of fraud, because the bill contained no allegation of fraud.
In McElderry vs. Shipley, et al., the bill did not charge fraud previous to, or in the agreement; but that, since its execution, there was a fraudulent attempt to deprive the complainant of the benefit which it was the object of the agreement to secure. At page 35, the court say, "that parol evidence is inadmissible in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be. For if they voluntarily choose to express themselves in the language of the deed, they must be bound by it." In support of which Wesley vs. Thomas, and other cases, are referred to.
An effort was made in Watkins vs. Stockett, 6 H. & J.,  [**161]   435, to convert a deed, absolute on its face, into a mortgage. It appeared that, either by the grantor himself, or, in his presence, the conveyancer was particularly instructed to pass an absolute estate, and the court remark: "No room is left for the inference of circumvention or fraud. He transferred his estate with his eyes acknowledgedly open to the nature and quality of the estate which was transferred, and was intended to be transferred." Again, on page 445, it is said: "Indeed where fraud is charged, and the evidence establishes it, it has been remarked, that the statute of frauds may very properly be put out of the way, since the object of such evidence is not properly to contradict the instrument, but to raise an equity de hors the instrument, in contradiction of an intent which no law or statute will be suffered to assist or protect."
There no fraud was alleged, and consequently none could be proved, according to the determination in Wesley vs. Thomas.

 [*435]  It must be evident, that in the cases which have been noticed, when speaking of the binding effect of language in which a party "voluntarily chooses to express himself," in a deed, the courts had no [**162]  intention to deny, or even to restrain in any degree, the well established authority of a court of equity to grant relief against a deed or other instrument obtained by fraud or circumvention.
The doctrine of merger, relied upon as the appellant's third ground of objection to the appellee's claim for relief, cannot be sustained, if paper P, the consent to the ratification of the sale, and the decree based upon it, can be shown to have been obtained by fraud or imposition. Any other theory would exclude, in many cases, the best evidence of fraud. The last written agreement made between parties, will, in the absence of fraud, mistake or surprise, merge all prior negotiations, so that by them its terms cannot be contradicted, added to or varied. But such prior negotiations will be admitted as evidence of fraud, mistake or surprise, when they tend to sustain an allegation of either. In Davis vs. Calvert, et al., 5 G. & J. 269, upon issues sent from the orphans court, Ch. J. Buchanan said: "Fraud vitiates every thing with which it is connected. A will or testament therefore, which is obtained by fraud, is void; and though fraud is never to be presumed, yet it is [**163]  not necessary to prove it by positive and direct testimony. But being usually wrapt up in mystery, if well concerted, it is generally by circumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue, and not wholly irrelevant, may be admitted." See also 1 Knapp. 81.
In Jones vs. Hardesty, et al., 10 G. & J. 416, the appellant objected to oral evidence of an agreement, because there was a written contract, and the court say: "If the oral contract referred to had been reduced to writing by the parties, or if it was intended that the assignment should be such written contract of the parties, then might it be contended, in the absence of all proof of fraud, surprise or mistake, that the oral 

 [*436]  evidence offered by the appellee was inadmissible." The appellant's objection was not sustained, because the court did not consider that the parties had reduced their agreement to writing. And it is a necessary inference, from the language just quoted, that even if the agreement had been reduced [**164]  to writing, the parol evidence would not have been excluded, if it tended to prove an allegation of fraud, surprise or mistake. This principle is most explicitly announced in Henderson vs. Mayhew, et al., 2 Gill 393. "Parol evidence," it is there said, "is inadmissible to change or contradict the terms of a written instrument. Strangers to the instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake." Here is a statement of the general rule which forbids the use of parol evidence for the purpose of contradicting or changing a written contract, but exceptions to the rule are also stated, one of which admits even a party to the instrument to impeach it by parol proof where fraud or mistake is alleged by him.
When there is a written contract in relation to land, and some of the terms or provisions in the verbal agreement of the parties are not included in the writing, but omitted by design, even on the express understanding that such provisions should be carried into effect in the same manner as if they [**165]  had constituted part of the written instrument, if there is no fraud, undue influence, surprise or mistake, either in the making of such contract or in reducing it to writing, parol evidence, alone, will not be admitted to enforce the omitted provisions, or for the purpose of contradicting, adding to or varying the written instrument; although subsequently to its execution one of the parties has fraudulently refused to comply with the omitted provisions, and in open violation of good faith and fair dealing, insists upon his right, under the statute of frauds, to have the contract, as written, carried into effect. Such I understand to be the law of Maryland.
But I have seen no case, in which it has been held that a court of equity will refuse relief to a party of weak mind--even 

 [*437]  though the weakness is not very great--harrassed with debt, having good reason to apprehend that nearly, if not quite, all the property he has, is about to be sold under a mortgage, without any means of his own to liquidate the debt, and who, thus situated, placing confidence in the ability, willingness and intention of a person offering his friendly assistance to prevent the property from being [**166]  sacrificed, is, after placing such confidence in these professions of friendly aid, and through the influence of the person making them, induced to enter into a written contract or conveyance, which, in terms, professes to convey or transfer an absolute title to the whole property, for a sum far less than its actual value; when it appears by written and parol evidence combined, that notwithstanding the absolute character of the written contract, the vendor was led to believe he was nevertheless to be entitled to a part of the property, or to some interest therein; and yet subsequently to the written instrument the vendee fraudulently claims the whole title absolutely. In my opinion a court of equity is bound to grant relief to a confiding and deceived party, even against an absolute conveyance, when his grounds for relief are sustained by written and parol evidence combined, against the unrighteous demands of one, who, for the sake of gain, has abused the confidence produced by his professions of friendship towards a man in distress.
Whenever parties stand in a confidential relation towards each other, and any advantage is taken of that confidence, relief in equity will be administered [**167]  with as much promptness as upon any other ground whatever. In Billing vs. Southee, 10 Eng. Law & Eq. Rep. 39, 40, the Vice Chancellor says: "There is no part of the jurisdiction of this court more useful or more well founded than that which assumes the control over all transactions between persons occupying confidential relations towards each other. This jurisdiction ought to be exercised, whatever be the circumstances and position of the parties between whom the confidential relation exists, whether attorney and client, guardian and ward, or surgeon and patient." The latter relation was the one then under consideration. Other cases recognize the rule as applicable to 

 [*438]  other instances than those here enumerated--such as trustee and cestui que trust, principal and agent, a clergyman and one of his flock. The instances mentioned by the Vice Chancellor, were therefore intended only as examples in illustration of the rule, and not as restricting the general proposition previously stated by him, to the enumerated cases. And why should not the rule apply to all, as well as to particular cases of confidential relations, which afford a favorable opportunity of obtaining [**168]  an unfair advantage, or of exercising an improper influence? And it may be correctly said, there are few of such relations, which will enable a party more easily, or more effectually to obtain an advantage, or to exert an undue influence than when he has created a confident belief that he is acting the part of a friend, for the purpose of relieving a man of weak mind in distress, expecting to be deprived of his property by a pressing creditor, and that property constituting nearly, if not quite all the means which he has for the support of himself and family.
Speaking of the extent of the rule, in Gibson vs. Jeyes, 6 Ves. 276, where a contract had been made between a client and his attorney, Lord Eldon uses the following language, in regard to the onus of proving the correctness of the transaction: "It is necessary to say broadly, that those who meddle with such transactions, take upon themselves the whole proof, that the thing is righteous." And on page 278, he says: "It is asked, where is that rule to be found? I answer in that great rule of the court, that he who bargains in matter of advantage with a person placing confidence in him, is bound to show,  [**169]  that a reasonable use has been made of that confidence; a rule applying to trustee, attorneys, or any one else." When used in such connection, "any one else," of course includes any party standing in a confidential relation, where the propriety of his contract is called in question.
In Brooke, et al., vs. Berry, 2 Gill 102, the court say: "It can hardly be insisted that the appellee has not, in a contract with his principal, obtained a conveyance of his lands at a price greatly below their value, which of itself would induce a court of equity, (apart from the mental incapacity of the 

 [*439]  principal,) to set aside the contract, unless it were shown, by competent testimony, that the contract was entered into in a way and under circumstances, which made it apparent that there had been no abuse of confidence, no undue influence, no imposition or material concealments practiced by the agent upon the principal, which could cast a shade of doubt as to the fairness and honesty of the transaction." Here, because of the relation of principal and agent, inadequacy of price alone was deemed sufficient to require satisfactory proof from the latter that the contract [**170]  was fairly and honestly made.
In addition to the authorities I have referred to, see also those cited by the judge below, in regard to fraud arising from undue influence in cases of confidential relations between the parties.
In view of the authorities, I think there can be no doubt that when fraud is charged, parol evidence, especially when aided by written proof on the subject, may be admitted for the purpose of impeaching a written contract, whenever such evidence tends to show the existence of a confidential relation between the parties, that the contract is very disadvantageous to the vendor, who is a man of weak mind and much embarrassed in his affairs; and such evidence has a tendency to establish facts from which the inference may be drawn, that there has been improper influence exercised, or imposition practiced upon the vendor by the vendee, for the purpose of securing to himself an unfair advantage in the contract.
A conveyance cannot be successfully impeached for imbecility or feebleness of intellect alone, unless it be such as would justify the jury, under a commission of lunacy, in putting his property and person under the care of the Chancellor. But weakness, far [**171]  short of that in degree, if coupled with other circumstances showing that such lesser weakness has been taken advantage of, will be sufficient to set aside a deed. 1 Knapp. 78. 1 Story's Eq., sec. 237.
The weakness of mind in the present case is not such as, of itself, could justify setting aside a conveyance.
G. W. McConkey, in testifying with regard to Watts' intellect, says: "If you include business of importance, Watts is 

 [*440]  not a man of business habits. If there is any financiering in the business, Watts is not a man calculated to transact business of that kind." He acted as a justice of the peace for several years. He was reappointed, but the witness does not know whether he swore in or not.
Edward Riley says: "He really thinks Watts is not a man of business and of business habits." He does not think "Watts is a man of ordinary understanding, competent to make contracts, and would not trust him to make a contract for him." He thinks "Watts is in his usual mental faculties;" does not know that "he ever was deprived of his mental faculties." The witness does not know much of Watts' transactions. His buying and selling has been in a very limited way since he [**172]  has been in the deponent's neighborhood. He is a man who is compos mentis, but his business habits are very limited. The witness does not know, but should judge that Watts conducted his business himself.
R. Hook says: "He should not judge that Watts was a man of business and of business habits." This witness was a judge of the magistrates' court, and for a short time Watts was also one of the judges, and sat in the court two or three times, but took no active part in the business of the court. He believes Watts does transact his own business, and should judge he was a man of common sense. The witness never had much business with him.
This testimony is not very strong proof of imbecility, but, connecting it with the circumstances of the transaction, I regard him so far below mediocrity as to allow his weakness of mind to be treated as worthy of consideration in the inquiry, whether he has been overreached through the instrumentality of abused confidence.
On the 27th of April 1846, Watts filed in Baltimore county court a petition in relation to the claim under the mortgage given by him to Hook. The petition states, that S. H. Taggart, as trustee under the mortgage, had, during [**173]  the same month, advertised the mortgaged property for sale, but postponed the sale. That Watts had contracted to sell the property to Wilson for the sum of two thousand one hundred 

 [*441]  dollars, being more than sufficient to pay the debt, including interest and costs. That the petitioner had notified the trustee of said sale, and had requested him to report it, but he refused to do so, and intended again to advertise the property. The object in filing the petition was, to obtain from the court an order directing the trustee to report the said sale. Watts signed the petition, and annexed to it is the following admission: "I admit the facts above stated, so far as I am concerned. --G. B. Wilson."
This is written evidence of an agreement for a sale of the entire mortgaged property, the title to which should be passed under the mortgage, through the instrumentality of a sale to be reported by the trustee.
The trustee and Isaac Tyson, Jr., (who had become assignee of the mortgage,) filed answers to the petition, objecting to a report being made as prayed for. But, on the 17th of November 1849, the objections of Tyson were withdrawn, and the cause submitted, without argument, by [**174]  a solicitor for Watts and Wilson, and by Mr. Taggart, as trustee and solicitor for Hook:--whereupon the court passed an order, directing "the trustee to report the sale proposed by the parties, and set forth in the said petition. On the 20th of November 1849, the trustee, in obedience to the court's order, reported "the sale of the mortgaged premises in the proceedings mentioned unto the said Greenbury B. Wilson, for the sum of twenty-one hundred dollars, cash, to be paid on the ratification of the sale, with interest from the 27th April 1846, the day of sale." The same day on which the report was made Wilson and Watts filed their written consent to the immediate ratification of the sale as reported, and on that day the court passed an order of final ratification. The same day the trustee executed a deed to Wilson for the mortgaged premises, and two days after it was put upon record.
The proof shows, beyond dispute, that in April 1846, Watts was poor, and had good reason to fear he was about to lose his real estate on which he lived, and on which he relied for support.
A letter, dated the 9th of April 1846, to Watts from Wilson, 

 [*442]  shows that he had been engaged in endeavoring [**175]  to effect such an arrangement with the mortgagee and his trustee, or attorney, (Mr. Taggart,) as would stop the sale under the mortgage. After proposing that Watts, and Hook the mortgagee, should call on Saturday following, the letter concludes: "I can satisfy him about your security, and will go with him and you to Taggart's and save you from sacrifice."
The witness, Davis, says, that about April 1846, Wilson represented himself as the friend of Watts; and that Wilson said he felt a disposition to befriend Watts, to prevent him from being cheated or defrauded by Isaac Tyson, Jr. Davis also says, he and Wilson had frequent conversations, and the latter said that Tyson was endeavoring to wrong Watts and to get the mines for less than their value, calling Tyson sometimes rather opprobrious names.
J. Hook, the original mortgagee, being examined as a witness, testifies, that he believes he saw Wilson in 1846, and took him to be a friend of Watts; that Wilson wished to take up the claim against Watts' property, and, of course, the witness took him to be a friend of Watts. And from what he saw he thought Watts placed confidence in Wilson.
Mr. Taggart says, as well as he can recollect,  [**176]  either after the first or second advertisement of the farm for sale, by him, as trustee, according to his understanding of the matter, Wilson, as the friend of Watts, called at the office of the witness, and stated that he had not the money, but offered his notes for the whole mortgage debt, which the witness declined taking.
Tyson testifies, that, as well as his recollection serves him, Watts and Wilson, together, called at his counting-room, and Wilson appeared to be the friend and counsellor of Watts. The witness so considered him at the time. They offered him the Bare Hill mines, and wanted to know what he would give for them. The property offered was that part of the farm which had been leased to Samuel Davis, being sixteen acres.
L. T. Watts, the daughter of the appellee, says, Wilson was at her father's house two or three times a week, and every Sunday; that her father placed confidence in Wilson, at the time, as his friend.

 [*443]  D. Stewart, Esq., speaks of a conversation between himself and Wilson, either in 1846 or 1847. He is rather doubtful which, but is disposed to think it was the latter year. Wilson represented that he had called at the request of Watts, and [**177]  in consequence of the witness having written to Watts, the object of the proposed interview with whom Wilson wished to know. Mr. Stewart told him that he was a friend of Watts, and desired, if he could, to promote some satisfactory arrangement between Isaac Tyson and Watts in regard to the mineral lands of Bare Hill. Wilson said that no such arrangement could be made with Tyson; that Tyson wanted to take the advantage of Watts, and that he intended to protect Watts, so far as he could, from imposition. Wilson spoke of the said mineral land as being very valuable, and said they were important to Watts as his main dependence, and that Watts should not sacrifice them; that there was no chance of his arranging with Tyson for them at anything like a fair value.
Robert Wilson says, that Wilson, the appellant, stated to the witness, in the presence of Watts, "that he was the friend of Watts, and that he merely would undertake this thing to get him out of the clutches of Isaac Tyson, Jr., and Mr. Davis. He said that they were both trying to rob him (Watts) out of his house and home." This conversation occurred in 1846 or 1847. The witness had similar conversations with the appellant at his [**178]  office, at the farm, and at the mine.
The appellant also said to this witness, in the presence and hearing of Watts, "that the mine was invaluable, and there was no telling the amount of money it was worth, and that he would not take any amount of money for it if he was Mr. Watts; that it would turn out to be a fortune for him. He also said, that if he was Mr. Watts he would not let Isaac Tyson, Jr., have it for any consideration." The same witness says: "Wilson told him that when Watts gained the law-suit between him (Watts) and Isaac Tyson, Jr., that it was his (Wilson's) intention to put it," (of course meaning the mine,) "into a stock company--putting the stock up to about one hundred thousand dollars--and that they, (Mr. Watts and himself, Wilson,) would retain either fifteen or twenty-five 

 [*444]  thousand dollars apiece, so as to have the greater portion of the controlling power of the working of the mines, or words to that effect."
R. Hook, referring to a conversation between him and Wilson, in 1849, says, the substance of it was, that Wilson was acting as the friend of Watts. The witness "cannot tell the conversation, but it was on the subject of the Bare Hill mines.  [**179]  " On a subsequent examination this witness says, he understood Wilson to say that he was the friend of Watts, and intended working the mine jointly with him when they got rid of the difficulties then hanging over their heads.
T. Mitchell states, that to the best of his recollection, in June 1849, he conversed with Wilson in the presence and hearing of Watts, when Wilson proposed that the witness should go and take charge of the Bare Hill copper mine under Watts and himself, Wilson saying "they intended to work it systematically, and they intended to make captain of deponent."
In regard to the value of the property Samuel Davis says, that, in his opinion, the copper mines were worth $ 6000 in April 1846. "He does not know what other people would have thought about the price they would bring at public auction at that time, but he thinks they would have brought six thousand dollars." This witness professes to be familiar with the character and value of copper mines generally, and he had a lease for five years on those mines, commencing in 1845. At the close of his lease, however, he was not able to pay his debts, as appears by his answer to the fifth cross-interrogatory.
J. Hook, (the [**180]  mortgagee,) supposes the farm in April 1846 "was worth a good deal more than the amount of the mortgage debt. He does not know what it was worth, but he would have been willing to give more for it than his mortgage debt."
T. Mitchell thinks it hard to tell what the mines were worth in the summer and fall of 1849, but that if they had been for sale at public auction, they would have brought "ten thousand dollars at the least calculation." He worked in those mines in 1849, and never did anything in his life, as a business, but work at copper mines.

 [*445]  According to the testimony of James Farquharson, he, either as agent for Davis and Tyson, or for Tyson alone, made Watts an offer of four thousand dollars for the property, Watts reserving to himself one-fifteenth of the ore, also the dwelling-house and a few acres of land attached; which offer was rejected. This occurred, the witness thinks, in the spring or summer of 1846; and Tyson was exceedingly anxious to get the property.
G. W. White, the defendant's only witness, says, when he first became acquainted with the mines, about the 4th of May 1850, they were not worth five dollars. They were partly filled with water, to remove [**181]  which would probably cost from four to five thousand dollars, and take at least seven months to do the work. He likewise says: "Before the monthly yield of the mines in ore was sufficient to meet the monthly expenses of working them, said Wilson must have been out of pocket at least ten thousand dollars, for moneys paid in cleaning the water out, for machinery, and other incidental and necessary expenses in working them, and for digging and breaking ground, and clearing it out, and in sinking shafts and driving cross-cuts through ground in which there was little or no ore found or obtained."
From estimates differing so widely, were it necessary to do so, it might not be a very easy task to ascertain the true value of the property; but no such necessity exists.
From Wilson's own declarations, it appears that, in 1846 and afterwards, he considered the mines to be of great value; certainly, valuable enough to render a sale of them for the amount of the mortgage claim a sacrifice; which claim, it seems from the auditor's report of the 27th November 1849, with interest and costs added, the interest being calculated to the 27th April 1846, amounted to only $ 15.66 less than $ 2100.  [**182]  Still Wilson insists that for $ 2100 he purchased the whole estate, absolutely, in April 1846. And this he does, although his own declarations, viewed in connection with the other proof in regard to value, must warrant the conclusion, that from 1846 to the fall of 1849, at least, the property was worth $ 4000, if not considerably more.
Wilson says to Watts, in a letter dated the 22nd of October 

 [*446]  1846, "as respects the weighing of the ore, I suggested to Davis the propriety of getting you to see it weighed, as you were interested." And again, "if any one of those hands who are experienced in mining would call and see me, I might propose something to induce him or them to search out another spot where ore could be found, either on your place or ours, by promising a fee."
In a letter, dated the 8th of April 1847, Watts is informed of the abundant supply of copper ore upon the premises, and of its very rich quality, as ascertained by analyzing a portion of it. And then, in reference to the suit pending between Tyson and Watts under a lease to Petherick, it is said, "Tyson's lawyer says he expects they will appeal, but he has not done it yet; whether he does or does [**183]  not, is of but little consequence to us. I think matters look bright now, but you must be cautious how you talk and who you talk to; plenty of money ahead--only have patience."
The 20th of May 1847, is the date of a letter which contains the following language, "Well, the more mines that are found and worked the better for us; and if the ore is found on Buchanan it must still run back on your ground, so let them go ahead.... Only keep cool and look sharp, the money will come, sooner or later, in no small sums." The italics in the quotations from these letters are my own.
If, as Wilson now contends, he had purchased the entire estate in April 1846, how was Watts so interested in the ore as to make it proper in October following, that he should see it weighed? Or why say, "either on your place or ours," speaking of searching for another spot where ore might be found; when it was known that Watts had not owned any other real estate except the mortgaged premises? And if the whole property had been sold for the sum of $ 2100, why, in the following year, should Watts be informed of the quantity and richness of the ore? Why told, "plenty of money a-head, only [**184]  have patience?" having reference to finding ore on "Buchanan,"--which adjoins the property in dispute:--why say to Watts "it must still run back on your ground?" And why tell him, "only keep cool and look sharp, the money will 

 [*447]  come, sooner or later, in no small sums?" If he had sold the entire estate for a specified sum he could not be entitled to any thing more, and therefore, so far as he was concerned, it was a matter of no importance whether there was "plenty of money a-head" or not--whether he had patience or not--whether he did or did not keep cool and look sharp--or whether or not "the money would come, sooner or later, in no small sums."
Although the petition of 1846, and the proceedings consequent upon it, would, of themselves, seem to indicate, that for the consideration of $ 2100 Wilson should have a title to the whole property, yet his acts, his declarations, and his letters, must have been designed, or, at all events, were amply sufficient, to induce a confident belief on the part of Watts, that under the title thus to be transferred he was not to part with his entire estate. Wilson had declared his intention to save the property from being sacrificed [**185]  by a sale under the mortgage. Now, if a sale for the mortgage claim would have been a sacrifice, so would an absolute sale for $ 2100. Watts therefore could not have imagined his professed friend was engaged in doing the very thing he had censured others for designing to do; and which he had said it was his intention to prevent. As a friend, Wilson had interceded with the mortgagee and his trustee to prevent a public sale under the mortgage, and had offered to give his own notes for the whole claim. He had declared, both in and out of Watts' presence, that he was acting as his friend in the matter; spoke of the great value of the property, especially to Watts, as being his main dependence for support; of the intention of others to take advantage of him, and to rob him of his house and home; and avowed his determination to protect him from imposition, and to save his property from being sacrificed.
Such proof as is set forth in the previous part of this opinion can scarcely leave a doubt, that Watts was thereby led to believe he was dealing with a friend, whose purpose was not to acquire a title to the estate for his exclusive use, but to preserve for Watts, at least a portion of the [**186]  property or some interest in it. But if, after an examination of this proof, there 

 [*448]  should be any doubt on the subject, that doubt must be removed when such proof is considered in connection with the paper marked J; which is in the following language:
"Thomas B. Watts, and his wife Mary Ann Watts, has sold to Greenbury B. Wilson one-half of the farm he now occupies on Bare Hill, call'd Bare Hill, cont'g 93 1/2 acres, more or less, together with the entire control and privilege of mining for copper and other minerals, and carrying away on the whole tract forever, with the understanding that one-half of the nett proceeds of all minerals are to be paid over to said Thomas B. Watts, and his heirs and assigns. The said Thomas B. Watts, his heirs and assigns, to have the exclusive benefit of all crops rais'd by him on said farm.
Baltimore, 15th Feb'y 1849.
THOS. B. WATTS,
G. B. WILSON.
In the event that G. B. Wilson raises a stock company, or can sell the whole tract for a handsome remuneration, to the mutual advantage and benefit of both parties equally concerned, then the parties hereto are respectively bound to such an arrangement, their heirs and assigns.
Witness,  [**187]  this 15th February 1849.
A. CLIFTON."
This agreement is not only signed by the appellant but he admits it to have been written by him.
But the appellant says, admitting that paper J proves a sale of only one-half of the farm, at that time, it does not preclude the possibility of showing the acquisition by Wilson of a title to the other half, between the date of that agreement and the perfection of the title by the deed from Taggart as trustee. And it is insisted that the ownership of the entirety by Wilson, is conclusively established by the acts and declarations of the complainant, and by the paper marked P, dated the 1st of June 1849, which is as follows:
"All my right, title and interest in the Bare Hill copper mines, and the houses and improvements appertenant thereto, during the term of five years, from the tenth day of July 1845, with the right of reversion and possession, as secured to me, I hereby assigne and transfer to G. B. Wilson, for value received.
THO. B. WATTS,   (Seal.)"

 [*449]  Wilson admits that he wrote the exhibit AWB, and requested Watts to sign it. P, it appears, is in the handwriting of Watts and is an exact copy of AWB.
Although this paper [**188]  professes to have been executed for the purpose of assigning and transferring the property "for value received," yet, from the appellant's admissions, it is evident he did not pay anything as consideration, or purchase money, for the estate, until after the sale was ratified by the court; and his admissions also show clearly, that paper P was not based upon any other consideration than that mentioned in the petition and in the trustee's report of sale.
Prior to the execution of this paper, (P,) the petition stated a sale had been made at the price of $ 2100. The oral declarations and letters of the appellant, in connection with paper J, show, that for the $ 2100 not more than one-half of the estate had been sold. And yet, without any obligation on Wilson, to pay one cent of additional consideration, at his request, Watts executed paper P, which professes to assign and transfer all his right, title and interest in the mines. These circumstances, viewed in connection with the nature and terms of the application of the appellant to the appellee, to execute this instrument, furnish satisfactory evidence, that it was not to be a new contract, in regard to any other sale between the parties,  [**189]  than the one previously made, and which was to be consummated under the petition and the proceedings upon it, and consequently, in a court of equity, should be subject to all the qualifying terms connected with that original contract.
Wilson says: "That he did present to Thomas B. Watts the complainant's exhibit, marked AWB, admitted to be in this respondent's handwriting, and requested him to sign it as evidence of his, the complainant's, sale to this respondent of the Bare Hill farm and copper mine, so that said respondent could use it at the approaching trial between himself and said Davis, because this respondent's deed from said Taggart to this respondent was not then executed." Thus the request was not for evidence of a new, but of the old sale. And if Wilson intended, by this instrument, without any additional or new consideration, to secure to himself any larger portion 

 [*450]  of the estate than he was entitled to, under the existing contract, it was imposition, practiced by him, upon the party whose confidence he had gained by his professions of intended friendly assistance.
It may well be doubted, whether P was not intended merely for the purpose of enabling Wilson [**190]  to use it in a controversy between him and Davis, and not designed to have any effect as between the present parties. No use was made of it in the mortgage case. The day of sale, as there reported, was the date of the petition, from which date interest was to be charged. And although paper J was made an exhibit in the original bill, the answer to it contains not the slightest allusion to P. It was first brought into the cause by the defendant, under the commission to take testimony.
The inference, that this paper was only designed to be used on the trial between Wilson and Davis, is aided by the fact, that it does not profess to include the whole mortgage property, as mentioned in the petition, and the sale as ratified, but relates only to the "Bare Hill copper mines and the houses and improvements appurtenant thereto, during the term of five years from the tenth day of July 1845, with the right of reversion and possession thereof." And the lease to Davis bears date the 10th of July 1845, is for five years, and includes only sixteen acres of land, within which are the mines and the improvements attached to them.
This paper is dated the 1st of June 1849, and yet, during that month,  [**191]  in a conversation between the witness Mitchell and the appellant, in the presence of the appellee, in relation to the Bare Hill mine, it was proposed by Wilson, that the witness should take charge of the mine under Watts and Wilson, the latter saying, "they intended to work it systematically, and they intended to make captain of deponent."
From the testimony of J. T. Watts it will be seen, that after the year 1849, and shortly after he had left his father, (the appellee,) Wilson said to the witness "he was doing very wrong in leaving his father as he had done, that the business was then about to be settled between Tyson, Davis, himself, (Wilson,) and deponent's father, and he thought then that 

 [*451]  they would be able to realize something right handsome from the copper mines, and he said he saw no necessity at all for deponent's leaving home."
R. Hook likewise had two or three conversations with Wilson, in which he was understood to say: "That he was the friend of Mr. Watts and intended working the mine jointly with him when they got rid of the difficulties then hanging over their heads."
Even so late as the 22nd of November 1849, (the very day on which the trustee's deed [**192]  was put upon record, and two days after the date of the final ratification of the sale and date of the deed,) Wilson wrote to Watts a letter, in which it is said:
"Richard Hook saw Johnzee and will have the money taken out of Taggart's hands; nothing done in the other matter, but we expect you will be in to-morrow morning, as it will be necessary for you to deed one-half of Bare Hill to me, according to our agreement."
This letter is admitted to be in the handwriting of Wilson, but in consequence of not being signed by him, it is objected to as inadmissible evidence. For want of the signature it could not be used to establish an express trust, for a writing not signed will not transfer an interest in land or create a trust. But such a letter or writing as this will be admitted as evidence in support of a charge of fraud or imposition, in the same manner that parol proof will be allowed for such a purpose.
With such proof before me, I cannot believe that paper P was designed to be evidence between the parties of a full claim in Wilson, either to the whole of the mortgage premises, or to the mines with their appurtenances.
After a very laborious and thorough examination of the case,  [**193]  I am brought to the conclusion, that the parties stood in a confidential relation toward each other, the appellee having great confidence in the appellant, and the latter having much influence over the former. This was the consequence of poverty, great embarrassment, and some degree of mental weakness on one side, with a voluntary offer of assistance and relief on the 

 [*452]  other, accompanied with acts indicating the sincerity of such an offer. Under these circumstances the parties entered into a contract, which, according to the terms set forth in the petition, would seem to be an absolute sale of the whole mortgage premises at $ 2100. A price greatly below the full value of the property. The proof, however, makes it perfectly evident, that Watts was led to believe he had actually sold but a part of his estate. And to the influence of Wilson, resulting from Watts' confidence in him, may be ascribed, not only the terms of the contract, as stated in the petition, but also the consent to the ratification of the sale, the latter believing himself safe in the hands of a man who came forward to relieve him in time of need, with the avowed purpose of saving his property from being [**194]  sacrificed.
How could he imagine that the man who was promising to do this was then actually engaged in making a contract, by which he was securing to himself the entire property forever, for a mere trifle above the amount due upon the mortgage, a sacrifice for which claim the professed friend had repeatedly promised to prevent?
Whenever a title, although absolute on its face, has been acquired at a price much below the real value, by a vendee standing in a confidential relation to his vendor, if from written and parol evidence combined, it appears satisfactorily that the former has led the latter to believe he is, nevertheless, to continue the real owner of part of the property, the vendee should not be permitted to keep the whole. And such title having been acquired, through the instrumentality of a decree, will not prevent the title from being impeached, if the influence arising from such a relation continues to exist at the time of the decree. A party claiming the whole title, under the circumstances stated, would be committing fraud of such a character as the morals of a court of equity should never permit to be successfully carried into effect. And applying this doctrine to [**195]  the present case, I think the evidence, fully entitles the complainant to relief.
I agree with the judge below in that portion of his opinion in which he argues, that the decree in the mortgage case is 

 [*453]  liable to be impeached upon the ground of fraud or undue influence: and that the consent of Watts to the ratification of the sale is not a sufficient confirmation of the original contract to remove all objection to the validity of the decree. He very correctly holds, that subsequent acts will not amount to confirmations of previous contracts, which are liable to be impeached for undue influence, unless it appears that the influence has ceased to exist when the subsequent acts occur. And I also agree with him in believing, that in this case the evidence is quite the reverse of tending to show that the influence which the appellant had acquired, at the time of the original contract, did not exist when Watts consented to the ratification.
Another ground in opposition to the relief claimed by the complainant is, that if the transaction between the parties is a fraud, it is such upon the rights of third persons. And under the rule, in pari delicto potior est conditio defendentis,  [**196]   the complainant will not be permitted to allege his own fraud to invalidate his own contract.
The object of the rule was to discourage fraud by preventing the accomplishment of its design. But to apply the rule as now insisted upon, instead of operating as discouragement, would really be giving a premium for fraud. It would inflict punishment upon a party, who, in consequence of misplaced confidence, under circumstances of distress, had become the dupe of undue influence, and would reward, not merely a participant in the fraud, but the chief actor in its concoction, he being the only party who, at the time of filing this bill, and ever since, could be injuriously affected by granting the relief sought by the complainant.
Particular reference is made, in this opinion, to such evidence as I rely upon in support of the views expressed; it is, therefore, unnecessary to say, whether the evidence not used is admissible or should be rejected under the appellant's exceptions.
Upon the ground of fraud and imposition, I think the averments contained in the original and amended bills, and the proof in the cause, entitle the complainant to relief. And the title of the parties to the property [**197]  should, in my opinion, be 

 [*454]  settled upon the basis of exhibit J. I have arrived at this conclusion in consequence of being fully satisfied, that whilst the parties stood in a confidential relation, Wilson acquired great influence over Watts, which influence was unfairly exercised, for the purpose of securing to the former a title to the whole estate, by inducing the latter to believe the title was, in reality, only to be such as that described in the exhibit J.
We have seen, that in Wesley vs. Thomas, it is said, a court of chancery, in the exercise of its moral jurisdiction, "will, upon the proof of fraud, mistake or surprise, raise an equity by which the agreement of the parties shall be rectified." And in McElderry vs. Shipley, et al., it is likewise said, "A court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties."
From what has been said, it will be seen, that I do not concur with my brethren in holding that the decree below should be reversed and the bill dismissed.
In my opinion the cause should be remanded, under the act of 1832, ch. 302, without [**198]  reversing or affirming the decree, for the purpose of correcting, what I consider, a mistake of the judge, in regard to the net profits of the mines. But as the majority of this court think the bill should be dismissed, and as this opinion is already long enough, I shall not undertake to point out the mistake to which allusion has been made.  

25 of 31 DOCUMENTS 

MICHAEL P. JENNINGS vs. WM. PENDERGAST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 346; 1856 Md. LEXIS 79 

DECEMBER, 1856, Decided 

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

Caveat by the appellant against probate of the will of Catharine Jennings, upon the ground that from extreme age and infirmity of body, she became insane and non compos mentis, and whilst in this condition, the appellee, her son-in-law, procured the execution of the will by her.

The will is dated the 7th of January 1853, the testatrix being at that time ninety-six years of age. By it she devised all her property of every description to the appellee, and appointed him sole executor. She died on the 4th of January 1855, leaving the appellant, her only son, and Margaret Pendergast, the wife of the appellee, her only surviving daughter, and eight grand-children, the children of two deceased daughters.

The insanity was denied by the appellee, and plenary proceedings being ordered, the case was tried before the orphans court.

The testimony on both sides is sufficiently indicated in the argument of counsel and the opinion of this court. The court below, being of opinion that at the time of executing the paper the testatrix was capable of making a valid will, passed an order dismissing the caveat, from which the caveator appealed.  [**2]  

DISPOSITION:
Order affirmed but without costs.  

HEADNOTES:

The facts that a testatrix was ninety-six years old when her will was executed, that by it she disinherited her only son, and grand-children, giving her whole estate to her son-in-law, who procured the will to be prepared by counsel, and that shortly before its execution her son was confined in jail upon the complaint of some person unknown, for an alleged assault upon her, where he remained for some months and was then discharged without trial, would, if not rebutted, be sufficient to sustain a caveat to the will.

But all the attesting witnesses, having testified positively to the mental capacity of the testatrix at the time of the execution of the will, and other witnesses having testified, some to her capacity and others to her imbecility, and the orphans court, before whom these witnesses were examined and the case tried, having sustained the will, their decision was affirmed.  

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

That the will in controversy is unjust and unnatural, cutting off from all participation in the estate, not only the son of the deceased, but also, the children of her two deceased daughters. That the execution of this will was obtained by the appellee for his own advantage, from the deceased, when she was in the ninety-sixth year of her age, by fraud and misrepresentation, as shown by the testimony of several of the witnesses. That the deceased, when the will was signed, was imbecile, and non compos mentis, and incapable of executing a valid deed or contract, as shown by the thirteen witnesses upon the part of the caveator, all of whom give their opinions of her mental incapacity founded upon facts; and to show that such a will, whose execution is thus obtained, is not valid, reference is made to the following authorities. Story's Eq. sec., 238. 1 Bland, 377, Mrs. Owing's case. 5 G. & J., 300, Davis vs. Calvert. 2 Gill, 84, Brooke vs. Berry. 2 Phillimore, 69, Browning vs. Reane. Ibid, 449, Kinleside vs. Harrison. 1 Haggard, 355, Earl of Portsmouth's case. 6 Sergt. & Rawle., 55, Patterson vs. Patterson.  [**3]  9 B. Monroe, 30, Denton vs. Franklin. 1 Green's Ch. Rep., 84, Lowe vs. Williamson. 2 Do., 635, Goble vs. Grant. 4 Rawle, 356, Baker vs. Lewis. 5 Johns. Ch. Rep. 158, Van Alst vs. Hunter. 3 Md. Rep., 491, Cramervs. Crumbaugh.

John Stewart and C. J. M. Gwinn, for the appellee.

The question in this case is, whether the testatrix, Catharine Jennings, was of sound and disposing mind, and capable of making a valid deed or contract? No issues have been made up for a jury. In the plenary proceedings depositions have been taken and the testamentary capacity has been held by the orphans court to have existed, and the caveat dismissed. From this ruling of the orphans court an appeal has been taken, and this court must pass upon the facts as a jury, in order to determine whether the required testamentary capacity did or did not exist.

What rule of interpretation is to govern the court in dealing with the facts before it? The act of 1798, ch. 101, sub. ch. 1, sec. 3, requires that a person to make a valid will, or testament, must be "of sound and disposing mind, and capable of making a valid deed or contract." It has been supposed, that this rule requires a higher standard of testamentary [**4]  capacity than was required by the common law. Its true interpretation seems to be this: that as wills and testaments concern property, the law requires, that the testator when he seeks to dispose of his property by will or testament, should be in that condition of understanding, at the time of making such disposition, which would have been required to make any deed or contract into which he might have entered at the same time, valid or capable of enforcement against him. This is the true rule. To say that more intellectual capacity is required to make a contract than a will, and thus to seek the conclusion that the act of Assembly had in view some standard of capacity higher in reality than what is meant by a sound and disposing mind, is to involve the whole subject in absurdity. A testamentary disposition may be, to the last limit of the law, technical and complicated. A contract may be so simple, that it is within the comprehension of a child. All that our testamentary act means to say is, that if the testator was in such a condition of mind that any deed which he might have made would have been good against him, or any contract, however simple, have been enforced against him, he [**5]  has testamentary capacity sufficient. Let us see what contracts are good. In 1 Parson on Cont., 314, it is said, that courts of law as well as equity, afford relief to those who are of unsound mind. They endeavor to draw a line between sanity and insanity, but cannot distinguish between degrees of intelligence. Against the consequence of that deficiency of intellect, which makes mistake easy but does not amount to unsound or disordered intellect, even equity gives no relief, unless another party has made use of this want of intelligence to do a positive wrongful act. 3 Peere Wms., 129, Osmond vs. Fitzroy. 1 Ves. Jr., 19, Lewis vs. Pead. Chitty on Cont., 139. 9 Pick. 212, Farnam vs. Brooks. Story on Cont., sec. 37. In this case, it may be remarked here, that, there is no evidence looking to fraud or undue influence.

The low degree of intelligence required to enable a party to bind himself by a valid deed or contract, is shown by the law, as it stood in England, upon the subject of commissions of lunacy, prior to Sir Edward Sugden's Statute, 1 W. & M. Before that act the fact might be, that a person was incapable of managing his affairs, yet the right to dispose of his estate, either [**6]  by deed or contract, could not have been taken from him, unless the jury found that he was unsound in mind. Shelford on Lunacy, 87.

Now, are there any facts in this case which show, that if this testatrix had, at the date of her will, made a deed or contract, and survived, it would not have been enforced against her because of her unsoundness of mind, that contract not being for necessaries, not tainted with fraud, and not so far executed as to be incapable of recision? There is positive evidence to show her healthy condition of mind. The attesting witnesses to her will assert a positive opinion. They are allowed to give this opinion, because of the duty imposed on them to satisfy themselves of the condition of the mind of the testator. 7 Gill, 27, Brooke vs. Townshend. Shelford on Lunacy, 284, 286. The remainder of the witnesses for both sides give opinions--or opinions with opinions as a reason for an opinion,--and such testimony is inadmissible, unless they are connected with facts. Shelford on Lunacy, 279. 3 Wash. C. C. Rep., 587, Harrison vs. Rowan. 8 Mass., 371, Hathorn vs. King. 3 Do., 330, Poole vs. Richardson. 7 Sergt. & Rawle, 94, Rambler vs. Tyson. 4 Conn., 209, Grant [**7]  vs. Thompson. 5 Pick., 510, Needham vs. Ide. 29 Eng. Law & Eq. Rep., 38, Austen vs. Graham. Tried by this test the testimony of many of the witnesses is of no value, and indeed, inadmissible.

The capacity of the testatrix, being an inference of law, it is not only not rebutted but sustained by the testimony. Her great age only requires, that the court should look narrowly into the facts of the case. 2 Phillimore, 449, Kinleside vs. Harrison. 5 Johns. Ch. Rep., 158, Van. Alst. vs. Hunter. 2 B. Monroe, 75, Watson vs. Watson. No argument can be drawn from the preference she has shown for persons. 3 Md. Rep., 491, Cramer vs. Crumbaugh. The testimony shows that the reason of the disposition of the property made by this will was kindness received from the beneficiary under it. There was even a stronger reason to operate against the caveator. She had just before the making of this will received ill treatment from him. Though, as she did not complain against him, she does not seem to have known that he was in jail.

On the facts, therefore, and for the reasons given, we insist upon an affirmance of the order appealed from.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*351]  LE GRAND, C. J., delivered the opinion of this court.
We confess we have had great difficulty in coming to a conclusion in this case. The testatrix was ninety-six years of age at the time of the execution of the will in contest. This circumstance standing alone is of great weight, and although not, per se, conclusive, yet goes far, when the common history of humanity is considered, to induce the belief that the party attaining so advanced an age must be much weakened in mind, if not reduced to that state which the books designate as fatuity. In the case before us the deductions to be made from the fact of extreme old age are strengthened by the peculiar character of the will; it disinherits the only son of the testatrix and eight grand-children, the offspring of two deceased daughters. It makes, in the first instance, none of the blood of the testatrix the object of her bounty, but gives it all to her son-in-law, the appellee, to the exclusion of his wife, her daughter. When is added to these facts the additional one, that a few days before the making of the will, the appellant and only son of the testatrix was confined in jail, on the [**9]  complaint of some unknown person, for an alleged assault on her, and there remained for some months, and then discharged without trial; and also, that the appellee, the sole beneficiary under the will, procured its preparation by counsel, the case is certainly surrounded with great suspicion. Did it rest entirely on these facts we would not hesitate to reverse the order of the orphans court. But the conclusions to be drawn from them are rebutted by very positive testimony as to the mental condition of the testatrix at the time of the execution of the will. All the attesting witnesses state her to have been of sound capacity; one of them, Mr. Whyte, the draftsman of the will testifies, he carefully and slowly read the will to her, and she said it was all right, and that he had not "a doubt upon the face of the earth but that the testatrix was of sound mind and memory." Nine other witness give the opinion, she was of sound mind at the date of her will, although sometime prior to her death, which occurred two years thereafter, she became childish and imbecile. These witnesses are unknown to this court, as are, also, those who prove her imbecility. 

 [*352]  The credit to be attached [**10]  to their evidence, in some degree, would depend upon their appearance, and their manner of giving it. We have been deprived of this advantage; the orphans court enjoyed it, and we cannot be insensible to the value of the conclusions which it enabled them to derive from it. All cases like the present, we think, ought to be pronounced upon by a jury. They would see the witnesses and be the better able to estimate the amount of credit which ought to be awarded to the testimony of each.
Repeating, were it not for the positive evidence of Mr. Whyte, and others, that we would hold the testatrix to have been incompetent at the time to have made a valid will, and the suspicions surrounding the transaction, yet we cannot feel ourselves justified in reversing the order of the orphans court.
Order affirmed but without costs. 

26 of 31 DOCUMENTS 

ROBERT MICKLE, Adm'r c. t. a. of B. U. CAMPBELL, vs. TRUEMAN CROSS, Adm'r d. b. n., c. t. a. of SAMUEL NEILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 352; 1856 Md. LEXIS 80 

DECEMBER, 1856, Decided 

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

The will of Samuel Neilson, executed on the 19th of February 1840, contained the following legacy: "I devise and bequeath to the honorable John Purviance, his executors and administrators, the sum of $ 4000, in trust and special confidence, however, to be distributed and paid in such amounts, and to such persons, as my friend, Richard Lemmon, shall direct and name, in accordance with the instructions given by me to him, and who will explain the reasons for my making this bequest."

The only question in this case is, whether the estate of Campbell, who was executor of Neilson, and died before settling his trust, is responsible or not for interest, from the date of the passage of his last account as executor, to his death, upon a sum of money retained by him to pay the above legacy as soon as the legatee should be prepared to receive it? This interest is claimed by the appellee, as administrator d. b. n., c. t. a. of Neilson, from the appellant, as administrator c. t. a. of Campbell. The facts of the case are fully stated in the opinion of this court. This appeal is taken from an order of the court below allowing the claim.  

DISPOSITION:
Decree [**2]  reversed.  

HEADNOTES:

A legacy of $ 4000 was bequeathed to a legatee, in trust and confidence to be distributed in such amounts and to such persons as a friend of the testator should direct. The executor having several times tendered payment of this legacy to the legatee, who declined to receive it, but would not renounce it or put in writing his refusal to accept, retained stocks and cash to pay the same as soon as the legatee should be prepared to receive it, which retention appeared in his several accounts which were passed by the orphans court. HELD:

That under these circumstances the legatee could not claim interest on the money so retained by the executor, and as there is no sufficient proof that the executor used the money so as to make interest, and being in no default for not paying the legacy, neither he nor his estate is responsible for such interest.

An executor or administrator can be charged with interest only when it appears that he is guilty of a culpable inattention to his duty, by keeping money in his possession when there is no apparent reason or necessity for so doing, or when he has made use of the money to his own profit and advantage.

Where a case against an administrator is tried in the orphans court upon petition, answer and exhibits referred to both in the petition and answer and admitted as true, the statements of the answer must be regarded as true, unless in conflict with what is found in the exhibits.

Notwithstanding the act of 1852, ch. 133, when a cause is heard on bill, answer and exhibits, the answer is admitted to be true, although it may not have been called for under oath nor read at the hearing as evidence by the complainant.  

COUNSEL:
T. Parkin Scott and Henry Webster for the appellant, argued:

1st. That the case having been submitted on petition, answer and exhibits, all that is alleged in the answer must be taken as true; and if not all, then so much of the answer as is responsive to the petitition. 2 G. & J., 215, Pennington vs. Gittings. 3 Do., 406, Cowman vs. Hall. Ibid., 433, Roberts vs. Salisbury. 7 Md. Rep., 563, Feigley vs. Feigley.

2nd. That the estate of Campbell is not responsible for interest on the cash balance of $ 2631.03, retained by him as executor to pay the legacy to Judge Purviance, as stated in his fourth administration account. What was the executor to do with this legacy? It was a legacy payable in presenti, at any time the legatee might choose to call for it. He tendered its payment to the legatee, who declined to receive it, but at the same time refused to renounce it. It was not his duty to apply to the court, under the act of 1798, ch. 101, sub-ch. 10, sec. 11, for an order directing its investment; for the court had no power to pass such an order under that act, except where money "is directed to be paid at a distant period or upon a contingency," which was not [**3]  the case here. It is true the court had the discretionary power, under the act of 1831, ch. 315, secs. 4 and 5, to order the money to be brought into court, or invested, but they did not exercise that power here. The executor, therefore, could only hold it in readiness to be paid over at any time the legatee might call for it. This was done, and the fact reported in the several accounts of the executor to the orphans court, who approved and sanctioned it by the passage of those accounts. The executor held this money as a stake-holder, liable to pay it at any time on demand. He tendered its payment to the legatee, and was always ready and willing to pay it. Under these circumstances the legatee could not have demanded interest; why then should the executor be made to pay interest? The duty to keep it ready for payment at any time to the legatee is a good reason why no investment should be made. There is no proof that he actually made interest on the money. He retained the fund with the assent of the legatee and the approbation of the orphans court. The principle of law is well settled, that an executor is in no case chargeable with interest, unless it appears he has used the money to [**4]  his own profit, or has been guilty of culpable neglect or inattention to duty. 11 G. & J., 207, Chase vs. Lockerman. 3 Do., 24, Wilson vs. Wilson. 9 Pick., 386, Dodge vs. Perkins. 2 Dallas, 182, Knight vs. Reese. 11 Mass., 506, Wood vs. Robbins. 13 Do., 233, Wyman vs. Hubbard. 8 Taunt., 45, Lee vs. Munn. 5 Monroe, 578, Kellar vs. Beelor. 2 Kent's Comm., 365.

Neilson Poe for the appellee, argued:

That the estate of Campbell is rightfully chargeable with interest on the cash balance in his hands, in the same manner in which he had been charged with interest in the settlement of his third account, and that there is nothing in the answer to the petition of the appellee which, if taken as true, exempts him from such liability. An executor is bound by our testamentary law to settle an account every six months. The first two accounts of Campbell were settled in 1841. His third account was stated on the 28th of October 1846, was passed by the orphans court, and is, therefore, an adjudication of that court final, unless appealed from in due time. In this account he charges himself with interest on the cash balance of $ 1626.14, previously retained by him to meet this legacy, from [**5]  the date of his second account, a period of five years; the residue of the sum retained to pay this legacy being stocks, which were interest-bearing investments made by the testator himself. Why did he thus charge himself with interest? It was because he knew he was bound to invest, and not investing that he was bound for the interest. By this account he has admitted the receipt of interest or his liability for it, and where a party once admits interest it must be continued to be charged against him. The onus is upon the executor to show that he has derived no profits from the trust fund in his hands. That the executor is liable for this claim, is, we think, fully settled by the authorities. 9 G. & J., 115, Thomas vs. Frederick Co. School. 4 Do., 461, Gwynn vs. Dorsey. 3 Do., 311, Diffenderffer vs. Winder. 10 Do., 186, Comegys vs. The State. 11 Do., 208, Chase vs. Lockerman. 9 Gill, 200, Worthington's Exc'rs vs. Owings. Acts of 1798, ch. 101, sub-ch. 10, and 1831, ch. 315. 1 Johns. Ch. Rep., 508, Dunscomb vs. Dunscomb. Ibid., 527, Manning vs. Manning. 4 Do., 303, Brown vs. Rickets. 2 Wend., 77, De Peyster vs. Clarkson. 1 Edw. Ch. Rep., 131, Garniss vs. Gardiner. 2 Barb. Ch. Rep., 213,  [**6]  Spear vs. Trickham. 13 Mass., 233, Wyman vs. Hubbard. 3 Leigh, 359, Burwell vs. Anderson. 1 Grattan, 292, Bourne vs. Mechan. 2 Dev. Eq. Rep., 142, Finch vs. Ragland. 2 Dev. & Bat. Eq. Rep., 325, Peyton vs. Smith. 2 McCord's Ch. Rep., 1, Black vs. Blakely. 1 Dessaus, 193, note. 3 Do., 241, Darrel vs. Eden. 1 McMullan Ch. Rep., 275, McAlister vs. Brice. 3 Munroe, 122, Campbell vs. Williams. 6 B. Munroe, 356, Bowling vs. Cobb. 7 Yerger, 214, Turney vs. Williams. 14 Illinois Rep., 1, Rowan vs. Kirkpatrick. 10 Barr., 408, Brinton's Estate. 1 Brown's Ch. Rep., 359, Newton vs. Bennet. 3 Do., 433, Franklin vs. Frith. 10 Eng. Law & Eq. Rep., 233, Williams vs. Powell. 2 Wms. Exc'rs, 15, 68.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*356]  ECCLESTON, J., delivered the opinion of this court.
Under the agreement, made part of this record, the only subject for our consideration is, whether the appellee as administrator de bonis non of Samuel Neilson, can claim of the appellant as administrator of B. U. Campbell, who was executor of the said Samuel Neilson, interest from the 19th of December 1846, to the decease of said Campbell, in April [**7]  1855, upon the cash balance of $ 2631, reserved or retained by him, as appears by his fourth account, "to enable the accountant to pay to the honorable John Purviance, so soon as he should be prepared to receive it, a legacy of four thousand dollars, bequeathed to him in trust and special confidence by the testator."
Whether the estate of Campbell in the hands of the appellant, is responsible for the interest now claimed, we think must very much depend upon what would be the appropriate answer to an inquiry, whether, under the circumstances disclosed in the record, Judge Purviance was excluded from the right of demanding interest upon his legacy.
The petition states that, in June 1840, Samuel Neilson departed this life, having first made his last will and testament in due form of law, whereby he appointed Bernard U. Campbell 

 [*357]  his executor; that the will was duly admitted to probate, and letters testamentary were granted to the said Campbell; who settled in the same court in which this petition was filed, four accounts as said executor; the first on the 2nd of October 1841, the second on the 9th of November 1841, the third on the 28th of October 1846, and the fourth on [**8]  the 19th of December 1846; that Campbell died in April 1855, leaving a will appointing his wife executrix, who renounced; and Robert Mickle was duly appointed his administrator with the will annexed; that the petitioner was appointed and qualified as administrator de bonis non of Neilson; and that Campbell died without having made a final settlement as said executor, leaving a large balance of the estate in his hands.
The petition refers to the will of Neilson, and says, "that amongst other bequests, the said Samuel Neilson did bequeath to the honorable John Purviance, his executors and administrators, the sum of four thousand dollars in trust, and special confidence however to be distributed and paid in such amounts, and to such persons as Richard Lemmon should direct and name, in accordance with the instructions given to him, and who would explain the reasons for making the bequest." It is also alleged by the petitioner, that he is "informed and believes, that as soon as this bequest was called to the attention of the said John Purviance, he unconditionally renounced and refused the same, and that the said Richard Lemmon, always refused to give any directions for the payment [**9]  and distribution of the said legacy, and that both the said Lemmon and the said Purviance, have departed this life without leaving any directions in reference to said legacy." The petition then states, "that by the second account of said B. U. Campbell as executor of said Neilson, he retained to meet said legacy, when the said Purviance should be ready to receive the same, certain stocks of the appraised value of $ 3608.50, and the sum of $ 1626.14 in cash. By the third account, settled on the 28th of October 1846, he retained the same stocks and $ 2754.43 in cash, to meet said legacy, charging himself with interest on the cash balance of $ 1626.14, previously retained, from the date of the second to the date of the third account, being five 

 [*358]  years, and by his fourth account settled on the 19th of December 1840, he retained the same stocks, and $ 2631.03 in cash, to meet the said legacy."
The petitioner charges, "that the said Bernard U. Campbell, during his life time neither invested the said cash balance, nor as your petitioner believes, kept the same as executor, in any bank or place of deposit separate and apart from his own funds; but that he mingled the same with [**10]  his own moneys, and as this petitioner believes used the same as if it were his own." And the prayer of the petition asks, that the present appellee may be required "to answer all the matters and things set forth in this petition, and particularly to disclose when and in what manner the said John Purviance renounced the said legacy, whether in writing or otherwise, whether the books and papers of said Campbell, show that he kept the said cash balance separate and apart from his own moneys or otherwise." And the prayer further asks, that the said Mickle may be required "to settle a final account of the estate of the said Neilson, from the books and papers of said Campbell." In the previous part of the petition, the petitioner had claimed the right "to call upon Mickle, from the books and papers in his possession, to settle the account of said Campbell as executor of said Neilson, and to hand over to him (the petitioner) the balance found to be due, if the estate of the said Campbell be sufficient to pay the same."
The petition and the answer are under oath.
The answer admits the statements contained in the petition in regard to the decease of Neilson, his having left a will appointing [**11]  Campbell his executor, to whom letters testamentary were regularly granted. That Campbell died, leaving a will naming his wife as executrix, who renounced, and letters of administration with the will annexed were granted to the respondent; that upon the decease of Campbell, letters of administration de bonis non on the estate of Neilson were granted to the petitioner. And the answer says, "This respondent admits, that the said Campbell stated and passed four accounts as executor as aforesaid, which are now of record in this court." It is also said in the answer, "this respondent admits that the 

 [*359]  said Bernard U. Campbell departed this life without having fully settled and closed up his said trust, as executor of the will of said Neilson; and this respondent, from the books and papers of said Campbell, hath stated the account herewith filed marked B. U. C., which he prays may be taken and considered as a part of this his answer. And this respondent admits, that the said Campbell did retain in his hands stocks and money to a considerable amount, as will appear by the accounts already passed in this court, and that herewith filed, to pay the legacy of four thousand dollars [**12]  to the late Judge Purviance as mentioned in said Neilson's will, and for greater certainty concerning said legacy, this respondent begs leave to refer to said will. And this respondent further answering says, that he is informed and believes that the said Campbell, in his lifetime and on several occasions offered to pay said legacy to the said Judge John Purviance, but that the said Purviance declined then to receive it, but would not renounce it, and would not put in writing any thing to indicate his refusal to accept or renounce or release said legacy."
The answer admits the decease of Judge Purviance and Richard Lemmon.
The respondent says, "that he does not find from the books of said Campbell, that he either invested the said cash balance or kept the same as executor in any bank or place of deposit, separate and apart from his own funds, or what he did with it, and he has no personal knowledge on the subject; but this respondent avers that the said Campbell, was at all times ready and willing to pay said moneys to whomsoever might be entitled thereto." And the respondent "denies that said Campbell, was in default in relation to said legacy."
The answer also says, the respondent [**13]  "has offered to pay and deliver over to said Cross, the stocks and moneys in his hands, belonging to said Neilson's estate as shown by the account herewith filed, but said Cross hath refused to accept the same."
The petition was filed on the 10th of June 1856, and the answer came in the same day. The account on the estate of Neilson, mentioned in the answer, as having been stated by 

 [*360]  the respondent, it seems was passed by the orphan's court the day it was filed with the answer.
The record states that the petitioner, by his attorney, "exhibits and files in court here, a copy of the last will and testament of Samuel Neilson deceased." And after giving the copy, the record then says that the petitioner, by his attorney, "exhibits and files in court here, copies of Samuel Neilson's 1st, 2nd, 3rd and 4th administration accounts, which said copies are in the words and figures following," &c.
This will and these accounts, it will be recollected, are mentioned in the petition and referred to therein; and instead of being disputed, contradicted, or denied, in any respect by the respondent, his answer admits them, and refers to them as matters of record in the court in [**14]  which the cause was pending. There is no proof of any kind dehors those instruments, and when considering what should be the effect of an answer in such a case, we think the same rule should prevail which is applicable when a cause is heard upon bill, answer and exhibits, in a court of equity. This being so, the present answer must be held as true in regard to what is stated therein, unless in conflict with what is to be found in the instruments referred to by it, and admitted as true.
Although this is the answer of an administrator, the principle applied to it is not in conflict with the decision in Pennington, Adm'r of Patterson, vs. Gittings' Exc'r, 2 Gill & Johnson 208. There the cause was not heard on bill, answer and exhibits, but a replication had been filed and proof taken.
The case of Warren vs. Twilley, Ante, 39, shows, that notwithstanding the act of 1852, ch. 133, when a cause is heard on bill, answer and exhibits, the answer is admitted to be true, although it may not have been called for under oath, nor read at the hearing, as evidence, by the complainant.
There is nothing in this case, showing any deficiency of Neilson's estate to pay [**15]  debts and legacies. Nor is it denied that when the debts were paid, Judge Purviance had a right to receive his legacy of $ 4000, provided he had not renounced it. If therefore the principal sum alone, had been actually 

 [*361]  paid to the legatee, the representatives of the estate of Neilson, would have had no cause of complaint. But it is shown by the answer, that instead of an actual payment, the legacy was tendered on several occasions, and Judge Purviance declined to receive it; neither would he renounce it, nor put in writing any thing to indicate his refusal to accept, or renounce, or release the same. The executor therefore retained stocks and cash to enable him to pay the legacy, "so soon as the legatee should be prepared to receive it." And this retention appears in the administration accounts passed by the orphans court. With regard to retaining money by an administrator, under the direction of the orphans court, see 4 G. & J. 462.
The cash retained did not amount to $ 4000, and although the cash and stocks together exceeded that sum, it is shown that all the dividends upon the stocks have been fully accounted for, so that the claim at present is based [**16]  alone upon the loss of interest on the cash. Now, if such a claim would be without foundation, provided an actual payment had been made to the legatee, why should not retaining the money for the purpose of paying him have a similar effect, if the sum retained did not exceed the principal of the legacy? The estate of the testator would be reduced no more in one event than in the other.
Judge Purviance having on several occasions refused to accept payment when offered, and there being no evidence of his having made a subsequent demand, or of having indicated his readiness to receive the money, he could have no claim for interest; especially when the answer avers a readiness and willingness at all times, on the part of the executor, to pay. And by retaining the money to pay the legacy in such a case, Campbell's estate is not responsible for the claim now insisted upon. The proof is not sufficient to show that the money, retained in his hands, was so used by him as to produce interest during the time for which it is claimed. He was in no default for not paying the legacy; and having on several occasions offered payment, and being at all times ready and willing to pay whenever the [**17]  party entitled to the money should be prepared to receive it, his conduct protected the estate of 

 [*362]  Neilson from any legitimate demand for interest upon the legacy. There is, therefore, no propriety in charging such an executor with interest, upon the presumption, that he made it merely because the money was in his hands; when it is shown that, with the approbation of the orphans court, he held the money for the purpose of paying a claim actually due, and which might be demanded at any time; thereby creating a necessity for him to be always ready and willing to pay, which he was, as alleged in the answer.
In Gwynn vs. Dorsey, Adm'r of Howard, 4 G. & J. 453, it is said: "Whenever an administrator manifestly intends fairly to do his duty, the rule should be not to hold him liable upon slight grounds." This principle is adopted in Chase vs. Lockerman, 11 G. & J. 185, where the court were considering how far executors were responsible for interest upon money in their hands. And in the latter case the former is referred to, as holding that, an administrator may be compelled to pay interest upon money kept in his hands without apparent [**18]  reason, from the end of thirteen months after the date of his letters, but as likewise holding, at the same time, that he is only to be charged with interest, where in so doing, it also appears that he is guilty of a culpable inattention to his duty. And in Chase vs. Lockerman, the court quote, Wms. on Ex'crs, 1132, as saying: "There are two grounds on which an executor or administrator may be charged with interest: 1st. That he has been guilty of negligence in omitting to lay out the money for the benefit of the estate. 2nd. That he himself has made use of the money to his own profit and advantage, or has committed some other misfeasance. With respect to neglect on the part of the executors, in not laying out balances, it must be observed, that it frequently may be necessary and justifiable, for an executor to keep large sums in his hands, to answer the exigency of the testator's affairs, especially in the course of the first year after the decease of the testator, in which case such necessity is so fully acknowledged, that according to the ordinary course of the court, the fund is not considered distributable until after that time. But if the court observes that an executor [**19]  keeps money dead in his hands, 

 [*363]  without any apparent reason or necessity, then it becomes negligence, and a breach of trust, and the court will charge the executor with interest."
From these authorities it will be seen, that an executor may be responsible for interest on money kept in his possession, although producing no interest, when there is no apparent reason or necessity for his doing so. And this being true, we conceive it to be equally true, that where there is an apparent reason or necessity for retaining the money, the executor is not liable for interest, unless it can be shown that he has received interest, or has made use of the money for his own profit or advantage.
We think there was reason for the retention by Campbell; and that the circumstances do not justify holding his estate responsible for the interest now claimed.
On the 11th of July 1856, the orphans court passed the decree from which this appeal is taken. In that decree the present appellant is required to settle a further account upon the estate of Campbell, and in stating such account the register is directed to charge that estate with interest, on the sum of $ 2631, from the 19th of [**20]  December 1846 to April 1855, the period of Campbell's death. We consider the charge of interest erroneous, and therefore the decree will be reversed, but the cause will not be remanded, as the agreement renders it unnecessary.
Each estate must pay its own costs.
Decree reversed. 

CONCURBY:
LE GRAND 

CONCUR:

LE GRAND, C. J., delivered a separate concurring opinion.
This case, in my opinion, is free from all difficulty. All the interest and dividends received by Campbell have been accounted for. He "repeatedly" offered to pay the legacy to Judge Purviance, who, as often, declined to receive, but still, without renouncing, the legacy. He occupied the attitude of, at any moment, being ready to ask for the payment of the legacy. His refusal to receive when offered to him, could not make Campbell his trustee, so as to devolve upon him the obligation to make an investment for the benefit of Judge Purviance. 

 [*364]  Had the latter brought suit for the amount, with interest, he could not have recovered interest, and, for the reason, that he had declined to receive the amount when tendered. If he could not recover, how can the administrator d. b. n. of Neilson, recover for the benefit [**21]  of the representatives of Judge Purviance? To allow of such a state of things, would be but to say, that what could not be done by Judge Purviance or his representatives, may be done indirectly by the appellee. I am of the opinion, neither Judge Purviance nor his representatives have any claim for interest, and as a consequence, the administrator d. b. n. of Neilson, cannot recover it for them. For these reasons, I concur in the reversal of the decree of the orphans court.  

27 of 31 DOCUMENTS 

Negroes LOUISA BELL and others, vs. LUTHER D. JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 322; 1856 Md. LEXIS 77 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Circuit Court for Prince Georges county.

This was a petition for freedom, filed on the 11th of September 1854, in the Superior Court of Baltimore city, by the appellants against Campbell, who, on the 2nd of December of that year, came in and disclaimed title, and on the 9th of the same month, the appellee filed his petition claiming title to the petitioners, as administrator d. b. n., c. t. a., of Walter Chew, exhibited his letters of administration, and prayed a removal of the case to the circuit court for Prince Georges county, where he resided. On the 5th of January 1855, the court permitted the appellee to appear and defend the case, upon entering into the usual recognizance, and ordered the removal as prayed.

The case so removed came up for trial in the circuit court for Prince Georges county, on the 11th of June 1855, upon the issue of freedom vel non. A jury was empannelled to try the case, and the petitioners being called and not answering, the petition was dismissed by order of the court, and judgment rendered in favor of the defendant, for $ 11.98 1/3, "for his costs and charges here adjudged unto him, in and about his defence in this behalf laid [**2]  out and expended." On the same day the petitioners filed their second petition against the appellee, who at the same time made and filed in the case the affidavit as to his costs and expenses, which is set out in the opinion of this court, and on the same day the court, (CRAIN, J.,) passed an order, which is also set out in the opinion of this court, directing "a stay of all proceedings in this second petition, until the said costs and expenses shall be paid or secured to be paid." From this order the petitioners appealed.

A subpoena was issued, commanding the defendant to appear and answer this second petition, returnable on the 1st Monday in November 1855, on which day the appellee appeared and was ruled by the court to answer, or judgment by default would be rendered against him. The defendant then prayed leave to imparle until the 1st Monday in April 1856, which was granted, and at the April term 1856, he moved the court to dismiss this second petition, upon the ground, that the costs and expenses allowed by the order of the 11th of June 1855, had not been paid or secured to the defendant, and because by the 26th section of the act of 1796, ch. 67, it is provided, that such [**3]  non-payment of costs and expenses, authorises a dismissal of the petition. The court thereupon ordered the petition to be dismissed, and from this order the petitioners appealed. The record in the cause was not transmitted to the Court of Appeals, until the 8th of April 1856.  

DISPOSITION:
Reversed upon both orders appealed from and a procedendo awarded in regard to the second petition.  

HEADNOTES:

The act of 1796, ch. 67, sec. 27, provides, that where a petition for freedom is filed and dismissed, and a second petition filed by the same party, the court shall order a stay of all proceedings in the second case, "until the costs of the former petition, and all reasonable damages and expenses, sustained or incurred by" the master, "shall have been paid or secured to be paid:" HELD,

That counsel fees paid by the master for defending the first petition, are not included in the words, "all reasonable damages and expenses."

In construing a statute, the language employed must be considered with special reference to the subject matter legislated upon.

Where a law secures a valuable right, and contains qualifying or restricting provisions, which, from their language, are susceptible of a construction making them either moderately restrictive, or of a construction which would annul the right, or render it of no practical value, the latter construction should not prevail.

Where an order of court is within the limits of its discretion, it is final and no appeal lies, but where the order, upon its face, appears to be partly within and partly beyond the scope of the court's authority, it may be appealed from and reversed.

An order directing a stay of proceedings upon a second petition for freedom, until jail-fees and board, to the amount of "$ 250 or thereabouts," are paid, is defective for uncertainty: such an order is subject to the same rule, in regard to certainty, which is applicable to verdicts and judgments.  

COUNSEL:
Alex. B. Hagner and John M. S. Causin for the appellants, argued:

1st. That the 27th section of the act of 1796, ch. 67, did not contemplate counsel fees in the words, "costs of the former petition and all reasonable damages and expenses," but had reference solely to charges growing out of the petition, such as legal costs, jail fees, expenses in producing the negroes at court, and maintaining them during trial, costs of the recognizance, &c. Because, 1st. If counsel fees are contemplated, by whom are they to be paid? Certainly not by the petitioners. They remaining slaves, (the petition for freedom having been dismissed,) could have no rights or responsibilities of a civil character separate from their master, and could make no contracts either with third parties or even himself. 4 H. & J., 547, Wicks [**4]  vs. Chew. 5 Do., 191, Hall vs. Mullin. 9 G. & J., 27, Bland et al., vs. Negro Dowling. 2nd. The act could not contemplate that third parties, unconnected with the record, would pay such demands, for that would be encouraging maintenance, which is denounced by the law. 1 Bl. Com., 457. 3rd. The general scope of legal authorities is adverse to the inclusion of counsel fees, under the general terms, "costs and charges." 7 Md. Rep., 249, Wallis et al., vs. Dilley et al. They are not costs, Wright's Rep., 121, McDonald vs. Page. They are not "damages," 13 How., 369, Day vs. Woodworth. Sedwick on Damages, 99. Nor do they come under the word "expenses," as used in this act. The word "expenses" as here used, means just what "damages" means and nothing more, and the terms "damages and expenses," are to be read "damages or expenses." Smith's Com., 658, 731. Dwarris on Statutes, 74. 3 Gill, 496, Watkins & wife, vs. Sears. 19 Verm., 140, Barker vs. Esty. Again, this statute, in this respect, inasmuch as it is restrictive of the right of petition for freedom secured to negroes, is like a penal statute and must be strictly construed. Dwarris on Statutes, 68, 74, 78, 79, 711, 712, 772. 6 Md. Rep.  [**5]  , 400, Cochrane vs The State. An attorney's fee as established and regulated by the acts of 1715, ch. 48, and 1810, ch. 126, is the $ 3.33 1/3, which is part of the costs of the case, taxed by the clerk and collected by execution. This was the only counsel fee known to the legislation of that day. This is undoubtedly included in the words, "costs, damages and expenses," but whatever was paid by the client to his counsel, beyond this sum, as a fee or reward for his professional services and skill in giving advice, and opinions, in conducting, arguing and trying causes, was not a subject of legislative regulation; it was regarded as quiddam honorarium, given not as a salary or hire, but as a gratuity. The Legislature could not have intended to include such fees by the language used in this act, and if by construction they should be embraced, it would effectually put an end to every petition for freedom after the dismissal of a former one. It would put it in the power of masters to render the filing of a second petition, almost, if not absolutely, impossible.

2nd. That this order is wholly inoperative and void: 1st. It does not direct by whom these costs, damages and expenses, were [**6]  to be paid. 2nd. The court acted solely upon the exparte affidavit of the defendant, taken without notice to the petitioners or their counsel, and no opportunity was offered them to contest the account, either as to its items or the reasonableness of the damages and expenses, either as to counsel or jail fees. The words of the statute, "to be ascertained by the court," imply not an arbitrary discretion, but examination and judgment upon legal evidence. 2 Md. Rep., 334, Lambden vs. Bowie. 4 Md. Rep., 497, Ex-parte Shipley & wife. 1 Greenlf. on Ev., secs. 82, 83, 329, 348, 349, 364. 1 Bouv. Law Dic., 428. Act of 1809, ch. 153, sec. 1. 1 H. & G., 407, Union Bank vs. Ridgely. 66 Law Lib., 146. 3 Phillips on Ev., 5. The amount of these damages and expenses should have been ascertained by a jury trial, under the provision of the 4th section of the 10th article of the constitution. These authorities also answer the objection, that no appeal will lie from this order, because the ascertainment of these damages and expenses was left to the discretion of the court. If the court has not kept within the scope of the authority given to it by the statute, if it has allowed an item or charge which [**7]  the law does not contemplate should be allowed, and the order shows this upon its face, it is clearly subject to revision on appeal. 3rd. The order is also void for uncertainty. The affidavit, even, is not definite as to the expenses: it charges $ 250 for jail fees, or thereabouts. The order of the court is equally inexplicit; it does not specify the amount to be paid, but orders the payment of the expenses specified in the affidavit. What amount, under this order, was to be paid? $ 250, or an approximation thereto? if the latter, how near? The order, being a judgment, must be certain; it is subject to the same rule as to certainty, which is applicable to verdicts and judgments. For these reasons, we insist that the first order appealed from should be reversed.

3rd. That the order dismissing the second petition was erroneous: 1st. Because upon a strict construction of this act of 1796, ch. 67, its 25th and 26th sections apply exclusively to cases of petitions for freedom then pending, so far as they authorise the dismissal of a second petition after six months, upon failure to pay the costs of the first; and the 27th section, which, by its terms, applies to "petitions thereafter [**8]  to be filed," only authorises a stay of proceedings until payment, of reasonable damages and expenses, and not a dismissal of the petition after the lapse of six months. 2nd. Because the act contemplates a voluntary dismissal of the first petition by the parties petitioning, and does not apply to petitions dismissed by order of court, as was done in this case. 3rd. Because the order of the stay of proceedings was abrogated by the action of the court, in issuing a subpoena to the defendant to answer the second petition, and its order that the defendant should answer this petition or judgment by default would be rendered against him. 4th. Because his privileges under the order directing the stay of proceedings, were waived by the defendant with the sanction of the court, in this, that on the 5th of November 1855, the defendant prayed leave to imparle until the April term 1856, which prayer was granted by the court; all of which proceedings are utterly inconsistent with the order of the 11th of June 1855, directing the stay.

Thos. G. Pratt and John Nelson for the appellee, moved to dismiss the appeal from the order directing the stay of proceedings:--1st. Because the power to ascertain [**9]  the costs and expenses which the master had incurred by reason of the first petition, was a special power vested by the 27th sec. of the act of 1796, ch. 67, exclusively in the inferior court, and the exercise of which is placed exclusively in the discretion of that court, and consequently no appeal will lie from the exercise of that power. 2 H. & G., 79, Wall vs. Wall. 3 G. & J., 20, Wilson vs. Wilson. 7 Do., 109, Boteler, et al., vs. The State. 5 H. & J., 175, Anderson vs. The State. 6 Do., 151, Hawkins vs. Jackson. 7 Do., 454, Carroll vs. Barber. 10 G. & J., 283, Owings vs. Worthington. 1 Bland, 5, Ringgold's case. Smith's Com., 713. 26 Wend, 485, Lyon vs. Jerome. 2nd. Because the record was not transmitted to the Court of Appeals within the time required by law. They then argued, that if the appeal did lie and properly brought up for review both the orders appealed from:

1st. That the court below had authority to dismiss the second petition. The act of 1796, ch. 67, gives the right of jury trial in cases of petition for freedom, but, at the same time, limits and defines that right. The object of the law was to give the right of petition, and at the same time to protect the [**10]  master from vexatious proceedings in such cases. The 26th section authorises the court to dismiss the petition, unless the costs and damages are paid within six months. There is no assignable reason why this restriction should apply to cases then pending. The mischief is the same, the vexation just as great, in cases thereafter to be instituted as in those then pending. If the petition is to stand forever on the docket and can be revived by payment of costs at any time, then the master is entirely deprived of the power of alienation over such property. We insist, therefore, that the restriction as to time contained in the 26th section, will be applied to the cases provided for in the 27th section. In construing statutes we must look to the mischief to be redressed, and the remedy to be advanced in order to ascertain the intention of the makers. 1 Brock., 162, Strode vs. The Stafford Justices. Statutes are sometimes extended to cases not within the letter of them. 2 G. & J., 374, State vs. Boyd. And courts will apply, by analogy, the restrictions contained in express enactments on kindred subjects, to cases of similar character where no such express legislative restriction exists. 8 [**11]  Md. Rep., 387, Edwards vs. Bruce. But, independent of any statutory provision, the power to entertain jurisdiction of the case, and order a stay of proceedings until costs are paid, includes the power to limit the time within which such an order is to be complied with, and on failure to comply therewith to dismiss the petition.

2nd. That the order directing the stay of proceedings was in all respects legal and proper. The record does not show upon what evidence the court below acted. The judge was sitting in a court of law, where oral testimony is usually taken, and he certifies, in his order, that he was satisfied the defendant had sustained the damages specified in the order; and this court must presume, that he was so satisfied by legal evidence. But it is urged, that as the order provides for the payment of counsel fees it is erroneous. There is no pretence that these fees were not reasonable. The 27th section of this law of 1796, provides, in terms, that "the costs of the former petition, and all reasonable damages and expenses sustained or incurred" by the master, must be paid; that is, all reasonable damages, and all reasonable expenses. What are expenses? Prosecution of [**12]  the suit, and payment of counsel fees, are surely part of the expenses attendant upon, or sustained and incurred by, the defendant in every case of a petition for freedom. Full indemnity to the master for all such expenses was the object of the act. 9 Wheat., 362, The Appollon. Again, it is said the order is not in proper form, inasmuch as it fails to provide by whom these costs shall be paid. But it is in the very terms of the statute, and could not in its nature be made applicable to any particular person; nor could it be made obligatory upon any person whatever.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*328]  ECCLESTON, J., delivered the opinion of this court.
The 27th section of the act of 1796, ch. 67, enacts: "That if any petition, for freedom shall hereafter be filed in any court of law in this State, and dismissed, and a second petition filed at the suit of the same party, the court, in which such second petition may be filed, shall order a stay of all proceedings until the costs of the former petition, and all reasonable damages and expenses sustained or incurred by the defendant or defendants 

 [*329]  therein, to be ascertained [**13]  by the court, shall have been paid or secured to be paid."
In the proceedings before us, it appears the defendant made an affidavit, in which he says, that by virtue of the first petition for freedom, filed by the petitioners in the second case, he has sustained, and incurred the following expenses: for fees paid his two counsel, $ 250 each, making $ 500; "for jail fees and board of the petitioners" from the 13th of November 1854, to the 11th of June 1855, "at twenty five cents each per day, making $ 250 or thereabouts, in addition to the taxable costs in his cause."
The order of the court, after stating the dismissal of the first petition, then says: "The same parties having filed a second petition, which is now pending, and the defendant, Luther D. Jones, having satisfied the court that he has sustained and incurred, by reason of the said petition so dismissed as aforesaid, the expenses in his affidavit hereto attached specified, which are deemed by the court reasonable, it is thereupon on the application of the said Luther D. Jones, this 11th day of June 1855, ordered by this court, that there shall be a stay of all proceedings in the said second petition, until the said costs [**14]  and expenses shall be paid or secured to be paid."
This order contains the only ascertainment of damages or expenses by the court. And if it shows they have ascertained any amount of either, it is the amount of expenses specified in the affidavit of the defendant; for the order does not mention any sum to be paid or secured to be paid, except by reference to the affidavit, which is spoken of in the order as being thereto attached.
The appellants contend that this order is erroneous, because it allows counsel fees as expenses. Whether the allowance is proper or not, depends upon the interpretation of the act of 1796; and the words having an important bearing on that subject, are, "reasonable damages and expenses."
In construing a statute, the language employed must be considered with special reference to the subject matter legislated upon.

 [*330]  Should it be evident that a valuable right is intended to be secured, but there are provisions which qualify the right, or impose restrictions upon it, and those provisions contain language susceptible of such construction as may either be moderately restrictive, or so far in conflict with the right as to annul it altogether, or render [**15]  it of no practical value, then the enlarged construction of the qualifying provisions should not prevail. For it cannot be a reasonable supposition that the legislature designed the language should have an interpretation which would virtually repeal, or render exceedingly doubtful of any practical utility, the privilege evidently intended to be secured by the act.
It is perfectly manifest that, by the act of 1796, the Legislature intended to secure the right of filing a second petition for freedom after one has been dismissed; the petitioner, however, being required to comply with the terms prescribed by the statute.
The restrictions upon this right are relied on by the appellee, when he insists that the court committed no error in allowing him counsel fees, as expenses. But can it be imagined the Legislature contemplated such an allowance? So to imagine, would be equivalent to saying they had provided for a second petition, but had imposed upon it such clogs and restrictions as must render the beneficial exercises of the privilege, by those for whom it was designed, next to an impossibility. We cannot suppose the Legislature had any such design. They were aware that negroes, held [**16]  as slaves, could not have funds of their own, nor be expected to procure them from others, sufficient to pay the fees of counsel employed by their masters.
The laws of this State recognize negroes as slaves, and the courts are bound to protect and enforce the legitimate rights of masters. It is likewise the duty of our courts so to administer the laws as will secure to negroes the rights designed for them by law.
It is to be remembered, the law does not require payment of all, but of "reasonable damages and expenses." The meaning of reasonable, cannot be correctly understood without due consideration of the subject to which the word is applied. 

 [*331]  That which in one class of cases may be reasonable, might be quite the reverse in a different class.
After an examination of the authorities in regard to whether counsel fees are proper to be allowed as damages, we find the decisions on the subject, in our sister States, have not been uniform. In his work on damages, Mr. Sedgwick treats of this question at some length, commencing at page 99. He notices a variety of cases, without, however, coming to any definite conclusion as to the preponderance of authority.
In Wallis, et al., vs. Dilley, et al., 7 Md. 237, [**17]  it is held "to be well established, that in all matters arising ex contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel." In Day vs. Woodworth, et al., 13 How. S. C. Rep. 363, the right to claim such fees as damages was denied. There the suit was trespass quare clausum fregit in which the defendants were charged with tearing down and destroying the plaintiff's mill dam.
Looking to the contradictory decisions on the subject, and allowing proper weight and influence to our own, and to that of the Supreme Court of the United States, when the very peculiar nature of such cases as the one before us is duly considered, we do not think the act of 1796 should be construed to include counsel fees, as "reasonable damages and expenses," or as either.
Should it be conceded, that, in providing for the ascertainment of the reasonable damages and expenses to be paid to the defendant, the 27th section of the act of 1796 gives to the court a right to exercise their discretion, still, when under-taking to make the ascertainment, if their order or judgment, upon its face, shows they have included in the amount an item or charge which [**18]  the Legislature never designed should be so included, such a decision may be revised on appeal. It may be true, that an act of the court which is within the limits of their exclusive discretion is final; but, nevertheless, if it appears to be partly within and partly beyond the scope of their authority, it may be appealed from and reversed.
Believing the Legislature did not intend counsel fees to be 

 [*332]  allowed as expenses, and seeing that the court have included them in their ascertainment of expenses, we think their order on the subject is erroneous.
The order is likewise defective for uncertainty. It refers to the defendant's affidavit for the amount of expenses, in which the jail fees and board of the petitioners are stated to be "$ 250 or thereabouts."
Such an order must be subject to the like rule, in regard to certainty, which is applicable to verdicts and judgments. That they are required to be certain, is a principle so well settled, we shall refer to but few authorities on the subject. 10 Bac. Abr., 346, title Verdict, letter Q, (Bouv. Ed.;) Hambleton vs. Veere, 3 Saund. Rep. 169, 171, (Ed. of 1846;) Miller vs. Hower, 2 Rawle's Rep., [**19]  55, 56; and Harman vs. Childress, 3 Yerger 327, where it is said,--"a judgment must express with certainty and precision, the determination of the court."
That the affidavit is rendered uncertain by the words, "or thereabouts," we suppose cannot be doubted. If so the order is equally uncertain. And we think the court committed an error in directing a stay of all proceedings, until the expenses should be paid or secured to be paid, whilst the amount was not ascertained with sufficient precision. On account of which error the order should be reversed, notwithstanding it may be conceded to have been passed by the court whilst exercising a discretionary authority; for even if they had a discretion in fixing the amount, still they were bound to state it with certainty.
A majority of the judges sitting in this cause, think, that counsel fees should not have been allowed as expenses; and it is the unanimous opinion of the court that, for want of sufficient certainty in the amount of expenses, the order which directed a stay of all proceedings in the second petition, until payment of the costs and expenses should be made or secured, was erroneous. Under such circumstances,  [**20]  we think the court below were wrong in dismissing the last petition; and this renders it unnecessary to decide some of the questions which have been argued with much ability.

 [*333]  From the views set forth in this opinion it will be seen, that we consider the appellants entitled to a reversal of each order appealed from.
Reversed upon both orders appealed from and a procedendo awarded in regard to the second petition. 

28 of 31 DOCUMENTS 

ANN BROWN and others' Lessee, vs. DELILAH A. G. SHILLING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 74; 1856 Md. LEXIS 10 

JUNE, 1856, Decided 

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

Ejectment brought by the appellants against the appellee for a tract of land called "Lady's Luck." Plea, non cul.

1st Exception. The plaintiffs' title was an escheat patent, dated the 10th of March 1843, reciting, that it was granted "for want of the heirs of Ann Caldwell, who died seized" of the land in question, "and without heirs." The defendant then offered to prove that said Ann Caldwell died leaving children, heirs at law, at her death, and living at the time of instituting this suit, and that one of them is now living. To the admissibility of this parol evidence the plaintiffs objected, but the court, (NELSON, J.,) overruled their objection, and permitted it to go to the jury, and to this ruling they excepted.

2nd Exception. The defendant then proved that said Ann Caldwell died some thirty or forty years ago, leaving four children, one of whom is still living; that she was an Irishwoman, but none of the witnesses knew when she came to this country; that she was a widow when they first knew her, but none of them knew her husband, or whether he ever came to this country or not. The defendant then, for the purpose [**2]  of proving the naturalization of said Ann, offered in evidence her naturalization papers, granted by Baltimore county court on the 30th of October 1811. These papers state that Ann Caldwell "was a resident within the limits and under the jurisdiction of the United States between the 18th of June 1798, and the 14th of April 1802, and that she was a resident five years and upwards within and under the jurisdiction of the United States, and one year at least immediately preceding this application within the State of Maryland," and then follow the usual form of such papers. To the admissibility of this paper in evidence the plaintiffs objected, but the court overruled their objection, and they excepted.

3rd Exception. The plaintiffs then proved that said Ann Caldwell died in the year 1812, leaving four children, the eldest being at that time nineteen or twenty, and the youngest twelve years of age; that she was a native of Ireland and emigrated to this country, but at what time witness does not know; that she was a widow, but witness never knew her husband, or whether he ever came to this country or not, or where her said children were born, or whether any or either of them was born [**3]  in this country or in Ireland. The plaintiffs then asked an instruction to the effect, that they were entitled to recover, because there has been no sufficient evidence offered that Ann Caldwell at the time of her death left children entitled to take by inheritance the land in controversy, and because no sufficient evidence has been offered to invalidate their title under the escheat patent. This prayer the court refused, and to this ruling the plaintiffs excepted.

4th Exception. The plaintiffs asked an instruction to the effect that there is no sufficient evidence in the case that, at the date of the escheat patent, or when the special warrant recited therein was obtained, there was in existence any heir at law of Ann Caldwell capable of taking by inheritance from her the land in controversy, and that there is no sufficient evidence of an outstanding title in any other person to said land, so as to enable the defendant to defeat the plaintiffs' title and their right to recover in this action, and that there is no evidence of any right or title in the defendant of any kind so as to entitle her to call in question the validity of the patent granted to the plaintiffs. This prayer [**4]  the court refused, and the plaintiffs excepted.

The verdict and judgment were in favor of the defendant, and the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An escheat patent is but prima facie evidence of title and may be rebutted in an action of ejectment, by showing that the former owner did not die intestate and without heirs.

The judge of the land office in issuing such a patent makes no order determining any question of right, but the applicant takes the patent on his own suggestion of facts necessary to the title and at his own peril.

The naturalization laws of Congress do not exclude females from the right of citizenship.

The proviso to the 4th sec. of the act of Congress of 1802, ch. 28, is not prospective, but applies only to persons who were citizens at the time of its passage, and denies citizenship to the children of persons born abroad, unless their fathers who may have been born abroad had resided in this country.

Under this act the children of naturalized persons are citizens, if under twenty-one and dwelling in the country at the time of the naturalization of the parents, and this applies to the children of a widow who has been naturalized. 

COUNSEL:
Oliver Miller and William P. Maulsby for the appellants, argued:

1st. That the court below erred in admitting the testimony, contained in the first exception, to contradict the recitals of the patent that Ann Caldwell died intestate and without heirs. An escheat patent cannot issue unless the owner died seized of the lands in fee-simple, intestate and without heirs. Before the patent can be granted, therefore, the tribunal granting it must determine judicially these facts, and the patent itself is the judgment of that tribunal upon them, which cannot be collaterally impeached. The attempt here is to show that Ann Caldwell had heirs at law living at the time of her death, and thus directly to impeach the judgment evidenced by the patent that she had no such heirs. If this parol evidence be true, it shows that the patent was obtained by fraud or misrepresentation, "which can only be inquired into by the tribunal that issued it or a court of equity." This principle is conclusively settled by the decision of this court,  [**5]  in Cook vs. Carroll, 6 Md. Rep., 104, a case in all its bearings similar to the present, and which we think must, whatever may have been the previous decisions, control the judgment here.

2nd. But even if the case of Cook vs. Carroll can be distinguished from this, we still think there is enough in the other exceptions to warrant a reversal of the judgment. The papers upon their face purport to have been granted under the last proviso to the 1st section of the act of Congress of 1802, ch. 28, which dispenses, so far as the individuals included in this proviso are concerned, with the previous declaration of intention to become a citizen. We therefore admit there is nothing in the second exception, provided this act of 1802 shall be construed to extend to female aliens. But the third and fourth exceptions present different questions. The 4th section of the act of 1802 admits to citizenship children dwelling in the United States, and under twenty-one years of age at the time of the naturalization of their parents. Now it may be a question whether the naturalization of the mother alone would confer citizenship upon such children, inasmuch as the act speaks of the naturalization of [**6]  the parents, meaning, of course, both father and mother. But it is not necessary to press this point, for we think the case is covered by the second provision to this section, which enacts: "That the right of citizenship shall not descend to persons whose fathers have never resided within the United States." Now there is no proof in this case that the husband of Ann Caldwell was ever in this country; on the contrary, all the witnesses say they know nothing of him, or whether he was ever in the United States or not. We say, therefore, that the children of Ann Caldwell were not, until duly naturalized, capable of taking the land in question by descent from her.

James Raymond for the appellee, argued:

1st. It is a settled principle of law in this State, that an escheat patent is only prima facie evidence of title, which may be rebutted in ejectment by showing that the former owner did not die intestate and without heirs. 2 H. & J., 125, Hall vs. Gittings. 4 Md. Rep., 171, Hammond vs. Inloes. 2 Md. Ch. Dec., 495, Chapman vs. Hoskins. Much reliance is placed on the case of Cook vs. Carroll, 6 Md. Rep., 106, as overruling these decisions, but it appears to me there is no analogy [**7]  between that case and the one at bar. In that the court decided, and only decided, that the decisions at the land office, that the party to whom the patent issued was entitled to it, could not be questioned collaterally. That law is granted here, but we contend, that though entitled to the patent beyond present controversy, because it has been so adjudicated, that patent gave to the patentees no better title to the land than the State had, and that the State's title we are at liberty to controvert collaterally, and if we do it effectually, we thereby defeat the title of the patentee to the land, but not to his patent. In that case the whole question was, whether the patentee was entitled to the patent? In ours the whole question is, whether the State, the patentor, had any title to impart by patent? In that case the court very properly excludes testimony to show that the party who had obtained the patent was not entitled to it, because that would be to contradict those recitals in the patent which have undergone a judicial decision in the land office. They meant to say that it is the adjudicated recitals in a patent only which are protected by law from collateral review. Indeed the [**8]  court intimate this when they say they are not "to be understood as denying the right of courts of law to decide on the fact of the issue of a patent, or on its genuineness, or its effect when opposed by another for the same land." It is true we do not here oppose the effect of the patent by another for the same land, but that instance was given by the court only to illustrate the meaning of the word effect, as much as to say, by the effect of a patent we mean its power to confer title in opposition to other claims, as for instance, an elder title, and we may add respectfully, "as for instance, where the State had no title by escheat." The effect of a patent is not adjudicated by the tribunal which grants the patent; that tribunal has only to say whether the party applying for the patent has complied with the requisites upon which it is to issue. Conceding the land to be patentable, is the party applying the proper party to receive the patent? In other words, is he the legal proprietor of the certificate, and have "all the other conditions of plantation," which are precedent to the issuing of the patent, been complied with? If so, the patent goes carrying with it the State's title,  [**9]  but no more. It cannot give to the patentee a better title than the State had. True, the State must have prima facie grounds to believe that it has title before it will pretend to transfer it by a patent. But this is to shield it from being made an instrument of injustice to third persons by throwing a cloud over their estates, and not, as contended on the other side, to render that injustice inevitable. If the State was willing to take B's money for A's land and give B the better title, the only "condition of plantation" would be, that B plank down the money. But the State says, no, 1 will not only refuse to make B's title the best in such a case, but I go further, I will not even put A to the necessity of defending his title against an act of mine in granting a patent, until I have reasonable prima facie assurance that no citizen will be injured thereby, that the land which I profess to grant is mine, either because it never has been granted or has reverted back by way of escheat. It cannot be the law that the grantor, without title, can create a title in the grantee as against third persons. If the doctrine contended for on the other side be correct, if the granting of a patent [**10]  be an adjudication between the patentee and him in whom is vested an elder title to the same land, it would follow in a future conflict between the elder and junior title, thus acquired, the junior would prevail. As to the legal effect of a patent, see Landholder's Assistant, 495. The land office adjudicates conclusively upon warrants and certificates, but not upon the State's title. Ibid., 496, 497. As to the nature of escheat warrant, see Ibid., 470. Originally, the first proceeding to obtain an escheat patent was a petition to the proper tribunal in land affairs, praying that a mandamus might issue for the summoning of witnesses to declare on oath whether the land was escheat or not, and if so, by what means. Upon return of the inquisition or verdict, if the land was adjudged to be escheat, the petitioner obtained a warrant to resurvey it for his own benefit, payment therefor to be made upon return of the certificate. But long before our revolution this precaution was abandoned, and "all that a person had to do who supposed land to be escheatable for want of heirs, was to venture the expense of a warrrant and survey." Ibid., 174 to 177. And the author speaks of the risk which the [**11]  patentee, by escheat, run, for he had no guarantee, and there was no provision for refunding in case the title by escheat should not be sustainable.

2nd. But little need be said upon the other exceptions. The naturalization laws have never been construed to exclude females from citizenship, but, on the contrary, the words of the law are, "any alien, being a free white person, may be admitted," &c., and the constant practice has been to naturalize females. The children of Ann Caldwell were minors at the time of the naturalization of their mother, and were dwelling in the United States. By the express terms therefore of the 4th sec. of the act of 1802, ch. 28, they are to "be considered as citizens." The proviso referred to on the other side does not, in my judgment, apply to the case.  

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

OPINIONBY:
TUCK 

OPINION:

 [*80]  TUCK, J., delivered the opinion of this court.
It was settled in the case of Hall vs. Gittings, 2 H. & J. 112, that an escheat patent was only prima facie evidence of title, and might be rebutted, by showing that the former owner did not die intestate and without heirs, as suggested by the [**12]  party applying for such a patent. This case has been recognised by this court in Hammond vs. Inloes, 4 Md. 138. The first exception, therefore, was not well taken, unless the case of Cook vs. Carroll, 6 Md. Rep., 104, has overruled these decisions.
The cases are materially different in the means necessary in order to obtain an escheat patent, and one like that in Cook vs. Carroll, where the patentee claims as assignee of another, who appears by the records of the land office to be entitled to the land. By the early practice of the office, as we are informed by the Landholder's Assistant, 174, &c., the escheatable quality of land was determined by a jury summoned for the purpose, at the instance of the applicant; and if the provincial court, upon view of the inquisition, adjudged the land to be escheat, a warrant of resurvey was issued accordingly; which judgment of the court upon the inquisition returned, or office found, affirmed the validity of the particular cause of escheat under which the jury had determined the case to fall. But this process of inquisition and condemnation, interrupted by the change in the affairs of [**13]  the land office occasioned by the suspension of the proprietary government in 1689, was never fully resumed, and long before 

 [*81]  our revolution was wholly abandoned; so that all that a person had to do who supposed land to be escheat, was to make application and take up the land, if he thought proper to incur the expense and risk of not being able to maintain his title. The warrant for this purpose issues, "upon the mere suggestion of the applicant, with such specifications as to the cause of escheat, and the name, situation and quantity of the land, as the party is enabled or chooses to direct, in which it is obviously his concern to be as correct and as particular as he can, especially in regard to the description of the land." (Ibid., 470.) From this notice of the present practice in such cases, it appears that the judge of the land office makes no order in the premises which determines any question of right, but that the applicant takes the patent on his own suggestion of the facts necessary to the title, and at his peril.
In cases like Cook vs. Carroll, however, the process is very different, and a patent can be obtained only upon the most special and specific [**14]  allegations and proofs, of the right of the party claiming as assignee of the title. These proceedings are stated at pages 493, 494, and, "on the authenticity and validity of these proofs, and their effect in relation to the parties entitled, as well as the several interests of those parties, the judge is to determine and to pass the title of the State accordingly." It appears that such proceedings were had as preliminary to the patent set out in the case of Cook vs. Carroll, "whereupon it was ordered by the chancellor that a patent should issue accordingly." 6 Md. 104.
If Ann Caldwell, the former owner of the land in dispute, left heirs capable of inheriting, the effect of the evidence offered by the defendant, in the first exception, was merely to show a subsisting outstanding title in another person than the plaintiffs, for which it was admissible, 2 H. & J. 125, 126, and not to inquire collaterally into a question of title that had already passed sub judice, as was the case in Cook vs. Carroll.
The second exception was taken to the admissibility of the naturalization papers of Ann Caldwell, offered by the defendant. There was evidence that [**15]  she was a native of Ireland; a widow in 1810, or 1811, and that she died in 1812, leaving 

 [*82]  minor children, one of whom was alive at the time of the trial, or shortly before, but that the witnesses had never seen her husband, or known him to be in this country. We do not think the court erred in admitting this evidence. The act of Congress of 1802, ch. 28, has not, as far as we are informed, been construed to exclude females from the rights of citizenship by naturalization; on the contrary, the practice has been to grant the right in this State. If it should be confined to unmarried females, there is nothing to show that Ann Caldwell was married at the time of her application. There is evidence that she was a widow before 1811, when the papers were obtained, and if widows are entitled, we must assume that the court which invested her with citizenship inquired into her capacity for that purpose, and having issued the proper certificate, we cannot go behind it, but must acknowledge the rights of those claiming under her as a citizen.
The third and fourth exceptions were taken to the court's refusal to grant two prayers offered by the plaintiffs, upon the insufficiency [**16]  of the evidence to show that Ann Caldwell left children entitled to take by inheritance. We think that these prayers proceed upon a mistaken view of the fourth section of the act of Congress, above mentioned. It makes no difference in this case whether the husband of Ann Caldwell was ever in this country or not. That section enacts, that "the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens," "provided the right of citizenship shall not descend to persons whose fathers have never resided within the United States." It is plain that this act is not prospective, but applies only to persons who were citizens at the time of its passage; and the proviso denies citizenship to the children of persons born abroad, unless their fathers, who may have been born abroad, had resided in this country. The previous portions of the section, however, expressly declare, that the children of naturalized persons shall be citizens, if under twenty-one years of age, and dwelling in the country at the time of the naturalization of the parents. It appears that the children of Ann [**17]  

 [*83]  Caldwell fulfilled both these condition in 1811, when she was naturalized, and, consequently, were entitled to the rights of citizenship. 2 Kent 51, 64. In disposing of this point we have relied upon the fact that Ann Caldwell was proved to have been a widow. Upon the question whether the naturalization of a married woman, whose husband has never been in this country, will impart this right to the children, we express no opinion.
The court are unanimous in affirming the judgment on the first exception; but the last three are affirmed by a majority only of the judges who heard the cause.
Judgment affirmed. 

29 of 31 DOCUMENTS 

HENRY J. WILLIAMS vs. WILLIAM REYNOLDS and JEHU B. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 57; 1856 Md. LEXIS 50 

DECEMBER, 1856, Decided 

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

Assumpsit, brought by the appellees as holders, against the appellant as maker, of a promissory note for $ 1873.69, payable to blank order at four months, and dated the 27th of July 1853. Plea, non assumpsit.

Exception. The signature of the maker of the note was admitted, and also that the blank for the name of the payee was filled up with the plaintiffs' names at the time suit was brought. The evidence in regard to the sale or transfer of the note to the plaintiffs is stated in the opinion of this court. On cross-examination of the witness James Warden, in addition to the evidence as stated in the court's opinion, he said that he went out to Elk Ridge Landing to get the note and did not take Williams' account with him, and in answer to the question, "What representations did you make to him to induce him to make this note?" he answered: "I told him that we wanted his note to raise money on; does not recollect whether he mentioned his indebtedness or not." On re-examination the same witness proved, that since the note was protested Williams told witness that he knew he owed the note, but wished to test the question, whether [**2]  it was legal to follow the business of purchasing notes above the interest allowed by law. A letter was also offered in evidence from Williams to the plaintiffs, proposing to pay the note by transferring to them a lot of ground in the city of Baltimore. The plaintiffs then asked instructions to the jury, in substance as follows:

1st. If the jury find that the note was made by the defendant, payable to blank order, and given by him to the Messrs. Warden, and at the time it was so made and given the defendant was indebted to the Wardens in a larger amount than the note; that there was no usurious consideration for the giving of it between the defendant and the Wardens; that the Wardens afterwards placed the note in the hands of a broker to be sold or disposed of, and that the plaintiffs received the note from said broker and paid therefor a valuable consideration, then the plaintiffs are entitled to recover on the note, though they paid for it less than its amount after discounting legal interest therefrom.

2nd. If the jury find the making and giving the note, the indebtedness of the defendant to the Wardens, their placing the note in the hands of a broker for sale, and the [**3]  purchase thereof by the plaintiffs, as stated in the preceding prayer, and that at the time of such purchase the plaintiffs were not informed of the facts connected with the origin of the note; that the Wardens did not, nor either of their firm ever endorsed the note, or in any way became responsible for or secured the payment of it, or any part of it; that at the time it was given the defendant was credited on the books of the Wardens for the full amount of the note, and debited at its maturity with legal interest for the same, and no more; that shortly after its maturity the Wardens presented the defendant with his account with their firm, which included this note as a credit in his favor for its full amount, and a debit of merely legal interest thereon, and that defendant afterwards drew on said firm for all the balance appearing due him on said account, except about $ 3 to $ 5, which still stands to his credit on their books, then the plaintiffs are entitled to recover on the note, though they paid for it less than its amount after discounting legal interest therefrom.

3rd. If the jury find the facts contained in the second prayer, and further find that the note was given [**4]  by defendant in order to enable the Wardens to raise money for the purpose of purchasing wheat for the defendant, and that the Wardens did, between the date and maturity of the note, purchase wheat for the defendant to an amount exceeding that of the note, and that these purchases were made almost daily within that period, and that drafts to a still larger amount were within that time paid by the Wardens for wheat purchased by the defendant, then the plaintiffs are entitled to recover on the note, though they paid less for it than its amount after discounting legal interest therefrom.

The defendant then asked the following instructions:

1st. That the plaintiffs are not entitled to recover, if the jury believe from the evidence that the note was discounted by the plaintiffs for the Wardens at a greater rate of interest than six per cent., upon a calculation by Coakley and the plaintiffs at that rate.

2nd. If the jury believe the note was given by the defendant to the Wardens for the purpose of enabling them to raise money thereon, and without any account, and was accordingly discounted by the plaintiffs for the Wardens at a greater rate of interest than six per cent.  [**5]  upon a calculation by Coakley and the plaintiffs at that rate, then the plaintiffs are not entitled to recover.

The court, (BRICE T. B. WORTHINGTON, Special Judge,) granted the prayers of the plaintiffs, and refused those of the defendant. To this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A promissory note payable to blank order was given by the maker to a firm to which he was indebted, to an amount exceeding the face of the note, and continued so indebted until its maturity. The firm gave him credit, on their books, for the full amount of the note, and charged him with legal interest thereon, and, before maturity, placed the note without endorsing it in the hands of a broker for sale, who sold it at twelve per cent. and paid the proceeds to the firm, and after maturity the purchasers sued the maker. HELD:

That this being a valid, available note in the hands of the firm, before they parted with it, and on which, if they had held it till maturity, they could have recovered, the parting with it, at less than its value, was a sale, and not an usurious transaction such as to prevent the recovery of the holders.

To constitute usury there must be a loan of money, an agreement that the money lent shall be returned at all events, and that more than legal interest shall be paid.

A bona fide sale of a bill of exchange or promissory note is not usurious, although it may be sold below its value.

The test whether the transfer of a note by the payee to the holder, at more than the legal rate of interest, is a sale or an usurious loan, is, whether it was a perfect and available note in the hands of the payee, at the time of the transfer, upon which, when due, he could have maintained an action against the maker.

Whether the transfer of a note is a bona fide sale, or a mere device to evade the statute of usury, is a question for the jury where there are suspicious circumstances independent of the transfer, but there must always be some evidence to justify the court in submitting such inquiry to them; for prima facie the transaction is bona fide. 

COUNSEL:
Cornelius McLean for the appellant, argued:

1st. That the transaction as to the appellees was usurious. Some doubt has been entertained whether usury as between endorser and endorsee vitiates the note as against the maker, and decisions in different States take both sides of the question. As a general rule, however, it may be remarked that a party suing on a note must show title to it, and no title can be derived through a usurious transaction which is against the statutory law of the land, unless he takes without notice. 1 East, 93, Parr vs. Eliason. 1 Starkie, 385, Lowes vs. Mazzaredo. 4 Pet., 205, Lloyd vs. Scott. 2 Conn., 175, Lloyd vs. Keach. Comyn on Usury, in 5 Law Lib., 66, 175. The transaction in this case was usurious according to the above authorities, even if the note had been a regular business note. But [**6]  the evidence shows that it was not; that it was a mere contrivance to raise money on, and, therefore, it first became effective as between the parties when it was discounted. 1 H. & G., 477, Sauerwein vs. Brunner. It makes no difference that the appellant owed their agents money, unless the note was intended as a payment or security for it. If it was designed, as the testimony shows, to raise money on, then as between principal and agent it was not a note on which suit could be brought. Now all this ought to have been left to the jury, and if they found that in point of fact there was such an arrangement between the appellant and his agents for the borrowing of the money, and that it was borrowed accordingly by a discount of the note in question, they might have given a verdict for the appellant. We claim, therefore, the benefit of the case of Sauerwein vs. Brunner, and say that by the instructions granted we were shut out from it.

2nd. If there was usury in this case, we claim that under the 49th sec. of the 3rd art. of the constitution the plaintiffs cannot recover. We contend, that under this section any contract of any description, no matter how innocent any of the parties [**7]  may be, or how little any of them may be injured thereby, is void absolutely if tainted with usury. Ex turpi contractu non oritur actio, and the best test whether a contract is capable of being enforced when connected with an illegal transaction is, can the plaintiff establish his case without showing the illegal transaction? Here the holders of the note get title to it by means of the usury. Chitty on Cont., 657. The effect of this constitutional provision has been fully considered in the able opinion of Chief Justice Taney, in the case of Dill vs. Ellicott, recently decided in the Circuit Court of the United States, and the views here presented fully sustained.

3rd. The first and second prayers of the appellees take from the jury the circumstances which they might consider as proving that the note had no existence until discounted, and was made by an arrangement between the appellant and his agents to borrow money on, which there is certainly testimony tending to prove. The third prayer assumes the state of things contended for above, and still instructs the jury, that although the note was a contrivance to raise money for the appellant, yet that the plaintiffs ought to recover [**8]  if they did not know of the circumstances. For taking away from the consideration of the jury these facts and circumstances the prayers were clearly erroneous. 1 Gill, 84, Wolfe vs. Hauver. 6 Gill, 352, Western Bank vs. Kyle. 7 Gill, 46, Carter vs. Cross.

Oliver Miller and Thomas Donaldson for the appellees, argued:

1st. That there was no usury in any part of the transactions proved, even under the most stringent construction ever given to the provisions of the new constitution of Maryland; or even supposing that the severest statutes that ever existed in England were here in force. The elementary principle is, that to render a contract usurious there must be a loan, either express or implied, and an understanding that the money lent shall be returned at all events. Comyn on Usury, 156. 3 Eng. C. L. Rep., 92, 97, note. 4 East, 55, Barclay vs, Walmsley. 4 Pet., 205, Lloyd vs. Scott. 7 Pet., 103, Nichols vs. Fearson. 2 Conn., 178, Lloyd vs. Keach. Here there was certainly no loan to the Wardens by Williams, the maker of the note, who was then indebted to them to a much larger amount. Neither was there a loan from the appellees to the Wardens, for the latter did not endorse [**9]  the note or in any way guarantee its payment. The Wardens received the proceeds of the sale of the note, but they are not obliged to repay the appellees a single cent of the money. In all the cases where the transfer of a note has been considered usurious there was either endorsement or some sort of guaranty. The cases already cited show this, and also 7 Wend., 570, Cram vs. Hendricks. 3 Pick., 185, Knights vs. Putnam. 4 H. & J., 507, Burt vs. Gwinn. A promissory note may be sold like any other commodity, at any price. 7 Wend., 256, Kent vs. Walton. 3 McLean, 587, McLean vs. Lafayette Bank. The note in this case was not an accommodation note given without consideration, as in Sauerwein vs. Brunner, but an available note for consideration, perfect as a security in the hands of the Wardens before they delivered it to the broker to be sold. Williams was paid full value for it by the credit given on the Wardens' books, and even had it been proven to have been given in consideration of future advances it would have been available. Byles on Bills, 93, 98, 100, 103. Story on Bills, secs. 183, 190. 3 Wend., 62, Rice vs. Mather. The true test, whether the transfer of a note by the payee to [**10]  the holder at a higher premium than the legal rate of interest, is to be regarded as a sale or as tainted with usury, is, was it an available note in the hands of the payee at the time of the transfer, and could he, if it had then been due, have maintained an action upon it against the maker? 7 Wend., 570, Cram vs. Hendricks. 8 Cowen, 669, Powell vs. Waters. 15 Johns., 44, Munn vs. The Commission Co. 1 H. & G., 477, Sauerwein vs. Brunner. Looking to the evidence in the case there cannot be a doubt that the note was available in the hands of the Wardens, and if they had retained it until its maturity they could have sued Williams upon it. If this be so there is an end of the question of usury. But we may further add, that if a contract is susceptible of two interpretations, one making it usurious and the other not, the latter is to be taken. 3 Cowen, 284, Archibald vs. Thomas. 7 Pet., 111, Nichols vs. Fearson.

2nd. That even if there is usury in the case, the appellees are protected by the acts of 1824, ch. 200, and 1845, ch. 352, which we insist are not repealed by the 49th sec. of the 3rd art. of the constitution. This constitutional provision does not in express terms avoid [**11]  the contract, and, as we insist, leaves in full force the acts referred to. 8 Wheat., 355, Fleckner vs. U. S. Bank. 3 McLean, 587, McLean vs. Lafayette Bank. 9 Pet., 399, Bank of U. S. vs. Waggener. Cowp., 112, Floyer vs. Edwards. If these acts are in force, the only way in which the appellant could avail himself to any extent of the defence of usury was by special plea, such as is required by the act of 1845, and not under the general issue.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*63]  LE GRAND, C. J., delivered the opinion of this court.
This suit was instituted by the appellees against the appellant on his promissory note. There is no question as to the genuineness of the note, nor of the ownership of it by the appellees. The defence set up is usury. The plea in the case is non-assumpsit.
The note was drawn in blank. By the testimony of J. Warden it appears, he is of the firm of J. & H. Warden, and that on the 27th day of July 1853, the appellant gave him the note in question. At the time the note was given Williams was indebted to the said firm to the amount of $ 2,828.08, and credit was given to Williams on the books [**12]  of the firm, at the time of receiving the note, for its full amount. After the 

 [*64]  note was given $ 2276.98 worth of wheat was purchased for Williams, and delivered to him by the firm; and they also paid drafts for wheat purchased for Williams in the county, to an amount not less than $ 8,113.99. The firm were making purchases of wheat for Williams nearly every day from the date of the note to its maturity. After the maturity of the note the account of the firm with Williams was presented to him, and in it was a credit for the full amount of the note with a charge of legal interest thereon. The account showed a balance due Williams of about $ 150, for which with the exception of a few dollars he subsequently drew on the said firm and was paid. The note was placed in the hands of a Mr. Coakley to be disposed of, the precise words of instruction given to him, the witness Warden does not recollect. Coakley reported to the firm that he could dispose of it at twelve per cent, in which proposition the firm concurred. Neither the firm nor any of its members endorsed the note, nor did they, or either of them, enter into any obligation to pay the note, or any part thereof, in [**13]  any event whatsoever. On cross-examination the witness said, the note was given in order to pay part of the said Williams' indebtedness to the said firm, but nothing was said about discounting it; the object in taking the said note, was to lessen the indebtedness of said Williams to the firm, and to raise money to purchase wheat for Williams.
The broker, Coakley, testified the note was handed to him by the Messrs. Warden before its maturity, and before such maturity, was by him offered to the appellees, and by them taken at twelve per cent. The proceeds were handed over to the Messrs. Warden. The appellees did not know from whence the note came. At the time of its delivery to the witness, the Messrs. Warden told him it was a legitimate one, and that Mr. Williams owed them the amount for money advanced.
We are of opinion, on the case as proven, that there was no such taint of usury in the transaction as to prevent the recovery of the holders of the note, and therefore, the 49th section of the 3rd article of the constitution is not in any way involved in this controversy.

 [*65]  The proof is all one way as to the indebtedness of Williams at the time of the giving, the sale [**14]  and maturity of the note. It shows he was indebted beyond its amount, and that he received from the firm a credit for its full amount. The question then is, did the purchase of the note before its maturity, by the appellee, at the deduction of twelve per cent., so impair their title as to preclude them from recovering its amount from the maker? We think not.
To render a contract usurious there must be a loan, either express or implied, and an understanding that the money loaned is to be returned. This is elementary law. In the 1st Vol. page 299, of Bouvier's Institutes, usury is defined as "the illegal profit which is required by the lender of a sum of money, from the borrower, for its use. To constitute a usurious contract, the following circumstances are requisite; 1, a loan of money; 2, an agreement that the money lent shall be returned at all events; 3, that more than legal interest shall be paid. There must be a loan of money in contemplation of the parties, and if there be a loan, however disguised, it is sufficient; but a bona fide sale of a bill of exchange or promissory note is not usurious, although it may be sold below its value."
In the case before us at the [**15]  time of the delivery of the note to the Messrs. Warden, the consideration was full and complete, and continued to be so up to the time of its maturity. There can be no doubt if they had retained it until it became due they could have recovered its amount. This being so, then there was no usury in its inception. In the case of Cram vs. Hendricks, 7 Wendell 569, the whole subject is most fully and elaborately considered, and the rule there laid down by the Supreme court of New York and affirmed by a majority of the Court of Errors is, that the transfer by the payee of a valid, available note, upon which when due, he might have maintained an action against the maker, and which he parts with at a discount beyond the legal rate of interest, is not a usurious transaction, although the payee on such a transfer endorses the note; and on non-payment by the maker, the endorsee may maintain an action against the endorser. In that case, the one of Munn vs. The Commission Company, 

 [*66]  15 Johns. 44, was reviewed and fully endorsed. It is also quoted with apparent approval by the Court of Appeals in the case of Sauerwein vs. Brunner, 1 Harris & Gill 477. [**16]  In commenting on it in Cram vs. Hendricks, Judge Sutherland on behalf of the court says: "That was an action of assumpsit, brought by the plaintiff, as endorsee, against the defendants as acceptors of a bill of exchange; it was endorsed to the plaintiff by Oliver Ruggles, the payee of the bill, at a discount greater than the legal rate of interest, and it was contended that this was an usurious transaction, and avoided the bill. The only doubt which the court entertained upon this point, was, whether the bill was available in the hands of Oliver Ruggles, the payee, and whether he could have maintained a suit upon it? Judge Spencer, in delivering the opinion of the court, says, Upon a more careful examination of the case, we see no reason to doubt, that the bill, whilst in the hands of Oliver Ruggles, and before it was discounted by the plaintiff at a higher rate than the legal interest, was a perfect and available bill, and that when it became due he could have maintained an action upon it, either against the defendant, or Herman Rogers, the drawer. This, he continues, appears to the court to be the true test in distinguishing between a case where the discount of a bill  [**17]   at a higher premium than the legal rate of interest will render the transaction legal, by considering it the purchase of a bill already perfect and available to the party holding it, and where it will be illegal as an usurious loan of money." If this test be applied to the case before us there cannot be a doubt, that the note when passed to the Messrs. Warden was a valid, available note, free from all taint of usury. The facts of it are stronger than those in the cases which we have quoted, for here the parties, to whom the note was originally given, did not endorse it, nor in any manner become responsible for its payment. They sold it, by their agent, without being known to the present holders as in anywise connected with the transaction. The case of Sauerwein vs. Brunner, in no manner conflicts with these princiciples; so far from it, the court there quote them and seemingly, at least, adopt them. That was a case where the note 

 [*67]  was given as an accommodation and for the purpose of borrowing money at an usurious rate. The note being tainted, from the very moment it became available as a note, with usury, and having been made before the passage of the act of [**18]  1824, chapter 200, the taint followed it into the hands of a bona fide holder and debarred him from recovery.
Although the transfer of a note is inquirable into, that is, whether it be a bona fide sale, or merely a device to evade the statute of usury, and the question submitted to a jury where there are circumstances independent of the transfer to excite suspicion of an intent to evade the statute, yet, there always must be some evidence to justify the court in submitting such inquiry, for, prima facie, the transaction is bona fide. In the case before us, there is not a particle of testimony to go to the jury to show the existence of usury in the inception of the note, nor of an intent, on the part of the Messrs. Warden, to evade the statute. We have said nothing of the pleadings in the cause, no question having been presented in regard to them in the court below. Entertaining these views, we, of course, approve of the ruling of the Circuit court in regard to each and all of the prayers, and accordingly affirm the judgment.
Judgment affirmed. 

30 of 31 DOCUMENTS 

NIMROD BUCKINGHAM vs. GEORGE H. DAVIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

9 Md. 324; 1856 Md. LEXIS 26 

DECEMBER, 1856, Decided 

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

Trespass q. c. f., by the appellant against the appellee. Plea, non cul. and defence on warrant.

At the trial of this case, before THOMAS DONALDSON, ESQ., as special judge, four exceptions, raising the same question, were taken by the plaintiff to the rulings of the court, which, with all the facts of the case, are fully 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:

The 22nd sec., art. 4, of the constitution, which provides, that no judge "shall sit" in any cause in which he is interested, or related to the parties, or shall have been counsel, and that a special judge shall be appointed "to try the said cause," absolutely and unconditionally prohibits the disqualified judge from trying the case, but not necessarily from authorising mere matters of form, tending only to prepare the case for trial.

The circumstances of each case must determine whether the judge should act in any degree or not; where a continuance, or filing, receiving or amending pleadings, would prejudice one of the parties, and objection is made, the judge cannot act.

But in the absence of all objection the judge may act in all such instances, and in all other mere matters of course, which decide no question of right, but simply assist both parties to the trial of the case.

In interpreting the constitution the first thing to be attained is the purpose of its framers, and where this has not been clearly expressed, the necessity and nature of the thing provided for or against must be regarded.

The sole object of the 22nd sec., art. 4, of the constitution, is the impartial administration of justice; the thing to be secured is fairness and impartiality, that to be guarded against, bias and prejudice.  

COUNSEL:
James Raymond for the appellant, argued: That under the 22nd section of the 4th art. of the constitution, there was no court in existence for any purpose for this case after the county court was abolished, until the special judge qualified, and, of necessity, there could be no proceedings which that judge could recognise as proceedings in the case. This section declares, that "no judge shall sit in any case" wherein he may be interested or connected with either of the parties, within such degrees as may be prescribed by law. The acts of 1852, ch. 68, and 1853, chaps. 209 and 425, passed to carry into effect this provision of the constitution, use the same language,  [**2]  that no judge "shall sit in any case" in which he may be disqualified as provided in those acts. The people thought that by this provision in their organic law they had cut off the disqualified judge from any participation in the cause whatever. This, to my mind, is the clear meaning of this clause of the constitution, and if it be so, the judge of the circuit court had no authority to order or direct any of the proceedings in the case whatever, and hence the ruling of the special judge, in recognising the validity of such proceedings, was erroneous.

Joseph M. Palmer and Wm. P. Maulsby for the appellee, argued: That the decision of this court upon the several bills of exception in this case, must depend entirely upon the true construction and meaning of the 22nd sec. of the 4th art. of the constitution, and the act of 1852, ch. 68, passed to carry into effect this constitutional provision. Now we insist, that the authorising the clerk, by the circuit judge, to issue a warrant of resurvey, and granting leave to amend plats, certificates, pleadings, &c., no objection being made by the opposite party, is not "sitting to try the cause" within the meaning of the constitution and act [**3]  of Assembly. All instruments, whether constitutions, laws or contracts, are to be construed according to the true intent of their makers. The constitution in this particular clause provides nothing new. At common law no judge could sit in his own case. "Sitting in a case" means, sitting to try the case where the rights of the parties are to be affected, not the doing of mere ministerial acts necessary to place the cause in readiness for trial on its merits. If the argument on the other side be correct, a special judge must be appointed in every such case as soon as the writ is returned, and every continuance, the filing of every plea, the entry of every motion, the issuing of every commission to take testimony, and the passage of every mere ministerial order, as matter of course and without dispute, must be made and done by and before the special judge, for which he is to charge ten cents per mile for travelling expenses and $ 10 per day for his services. If suit be brought by any relation of the judge within the prohibited degrees, and there is no dispute in it, there must be a special judge to take the judgment. A construction involving such inconvenience, difficulties and expense,  [**4]  cannot be correct. Again, before the announcement of the disqualification is made by the judge there can be no appointment of a special judge. Whether or not he is related to the parties, or interested, or has been counsel in the cause, are matters left by the constitution and laws to be decided by the judge himself. We therefore insist, that the constitution and act in question only disqualify a circuit judge from sitting to try cases on the merits, where the rights of the parties are to be settled, and whenever the circuit judge in any case makes the announcement that he is disqualified from sitting to try the case, a special judge is to be appointed, and not before. The result of this interpretation is, that the acts of the circuit judge complained of in this case were legal acts and not void, and the judgment must be affirmed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*326]  LE GRAND, C. J., delivered the opinion of this court.
Nimrod Buckingham, the plaintiff below, on the 3rd day of December 1849, instituted in Carroll county court an action of trespass q. c. f., against the defendant, now appellee. The 

 [*327]   [**5]  defendant appeared in the court below, by his counsel, and pleaded not guilty, and took defence on warrant. The case then was continued from term to term, until the first Monday of April 1852, at which term of the court the Hon. Madison Nelson presided as circuit judge, under the provisions of the present constitution; at which term of said court the defendant, by his counsel, moved the court that a warrant of resurvey issue in this case, the plaintiff having neglected to cause one to be issued, and a warrant of resurvey was issued accordingly. The sheriff and surveyor executed said warrant, and made return thereof to the circuit court, at the April term 1853, with plots, certificates and depositions. The plaintiff in the court below then appeared, and prayed to amend the plots and certificates so returned, and to add thereto, if necessary, by the first Monday of the next September term, which prayer was granted by the court. At this state of the case the circuit judge announced to the clerk, and parties, that he considered himself disqualified from sitting to try the cause, by reason of having been of counsel in the case; whereupon the clerk of the said court, on the 3rd [**6]  day of June 1854, gave notice to the Hon. Nicholas Brewer, judge of the circuit court for the second judicial circuit of this State, that the Hon. Madison Nelson was disqualified from sitting to try said cause, and, on the 28th day of August 1854, the Hon. Judge Brewer, in due form of law, nominated and appointed Thomas Donaldson, Esq., a special judge to try said case, who accepted the appointment, and qualified according to law. At April term 1855 of the said circuit court, the case came on for trial before the special judge, and the verdict of the jury was for the defendant. At the trial, the plaintiff, by his counsel, moved the court to strike out of the record, and consider as a nullity, all proceedings in the case which had been had in the case since the April term of 1852, inclusive of that term and previous to the September term 1854, upon the ground that such proceedings were a nullity, for want of jurisdiction in the court, under the clause of the constitution, which provides, that a judge of the circuit shall not sit in a cause in which he had acted as counsel. The court refused the motion and the plaintiff 

 [*328]  excepted. This constituted the first bill [**7]  of exceptions of the plaintiff. He took three others, but they embrace precisely the same question, and nothing more, than that contained in the first.
The only question involved in the case grows out of the interpretation which the 22nd section of the 4th article of the constitution ought to receive. It provides that:
"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity, or consanguinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case; and whenever any of the judges of the circuit courts, or of the courts of Baltimore city, shall be thus disqualified, or whenever, by reason of sickness, or any other cause, the said judges, or any of them, may be unable to sit in any cause, the parties may, by consent, appoint a proper person to try the said cause, or the judges, or any of them, shall do so when directed by law."
It will be observed, that the first part of the section forbids a judge included in the specified category from sitting in the case, whilst the latter part only provides for the appointment of another judge "to try the said  [**8]   cause." These expressions, to be found in the same section, are not of the same signification, one being much more comprehensive in its interdiction than the other. To reconcile the whole section with all its parts, the two members of it to which we refer must be construed together.
In interpreting the constitution the first thing to be got at is, what was the purpose of its framers? Where this has not been clearly expressed, we must look to the necessity and nature of the thing provided for, or against, as the case may be. With this guide we can experience but slight, if any difficulty, in ascertaining the meaning of the language used in the section quoted.
Its primary, indeed its sole object, was to secure the impartial administration of justice, and, hence, it was held, that one who had been of counsel for either of the parties might be prejudiced in favor of his former client, and therefore, and for that reason, not above suspicion.

 [*329]  The thing to be secured was fairness and impartiality; that to be guarded against, bias and prejudice. We take it, that whatever interpretation of the section in question will best fulfil these purposes, is the correct one. And this [**9]  being so, we are of the opinion, that the true meaning of the section is, that a judge who has been of counsel for either of the parties shall be, and is, by it, absolutely and unconditionally, prohibited from trying the cause; but not necessarily from authorising mere matters of form, tending only to the preparation of the cause for trial, such as the issue of commissions and the like. We say, not necessarily, meaning thereby, that the circumstances of each particular case must determine whether, or not, the judge should act in any manner or degree. A continuance of a cause, for example, may work prejudice to one of the parties, so the filing of a plea, the refusal to receive one, or an amendment, may work mischief and jeopard the interests of the litigants. In all such and similar instances, if objected to, the judge ought to abstain from a decision and leave it to the special judge to be appointed. But surely it never could have been intended by the framers of the constitution, that the regular judge should be prohibited, in the absence of all objection, from expediting the progress of the case by a mere acquiescence in mere matters of course. In [**10]  such a state of things he cannot be said, properly speaking, "to try the cause." He decides no question compromising the rights of either party; he merely assists both on their way to trial. If the view of the counsel for the appellant is to be taken as the inexorable rule under all circumstances, then the constitution, in most cases, would work an absolute denial of justice; or if not productive of such calamitous consequences, it would, inevitably, devolve upon the State treasury a burden intolerable. Such an interpretation would require a special judge to be in attendance at the filing of every plea, at every continuance, the filing of every motion, and at every preliminary step in the progress of the cause. We cannot bring ourselves to believe this to be the true interpretation of the constitution. In the rule which we have laid down, we think the design and purpose of the constitutional provision is properly 

 [*330]  defined, and therefore concur with the ruling of the special judge in this case.
Judgment affirmed. 

31 of 31 DOCUMENTS 

JACOB M. BUCKEY vs. ARCHIBALD T. SNOUFFER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 149; 1856 Md. LEXIS 59 

DECEMBER, 1856, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Frederick county, sitting in insolvency.

John B. Snouffer applied for the benefit of the insolvent laws, on the 3rd of August 1852, and the appellee was appointed his trustee, and gave bond as such, and under order of the court, sold all the property of the insolvent on the 30th of August 1852. Much of this property consisted of growing corn and wheat in the straw, raised by the insolvent, upon a farm which he had rented from Charles C. Tucker, and was not delivered to the purchasers, but remained on the premises under the control of the trustee. Afterwards, on the 1st of September 1852, the landlord, Tucker, levied a warrant of distress on this wheat and corn whilst it was so upon the premises, for one year's rent due the 1st of July 1852, amounting to $ 958.05, and sold the same to pay, this rent. The trustee then claimed to have deducted from the amount of sales ($ 3001.11) the sum of $ 1588, for the amount of property so sold by Tucker, and $ 211.84, costs and expenses. This application, Buckey, the appellant, a judgment creditor of the insolvent, resisted, upon the ground that the seizure and sale by the landlord was illegal. The case was [**2]  then referred to an auditor, who, under directions of the counsel for the parties, stated two accounts, Nos. 1 and 2. The case was then submitted to the court, upon an agreed statement of facts, which is sufficiently set out in the opinion of Mason, J., of this court. The court below, (Nelson, J.,) being of opinion from the facts contained in the statement on which the case was submitted, that Tucker, the landlord of the insolvent, "had a clear legal right to distrain and sell for his rent, the property mentioned, notwithstanding the insolvent's petition for the benefit of the insolvent laws," passed an order ratifying audit No. 2, which allowed the trustee a deduction from the assets in his hands, the sum of $ 1588, being the amount of the sale under the distress for rent. From this order Buckey appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

Where a party applies for the benefit of our insolvent laws, his property comes under the custody of the law, for the benefit of his creditors, and cannot be distrained for rent due by the applicant at the time of his application.

Rent is not per se a lien on goods found on the premises: it binds as a lien only when the goods are seized under a distress.

A claim for rent due at the time of the insolvent's application, without a previous levy, accompanied by a subsequent distress, is not a lien or incumbrance, within the meaning of the 7th sec. of the act of 1805, ch. 110, and therefore, does not follow the property as an incumbrance or lien into the hands of the trustee.  

COUNSEL:
Joseph M. Palmer for the appellant.

The sale of the corn and wheat in question, by the landlord, while the property was in the actual custody and possession of the trustee, was in direct violation of the insolvent laws, and void, it being in the custody of the law, and not to be sold by any one except the trustee. By our insolvent laws, all the property [**3]  and estate of the insolvent vests absolutely in the trustee, for the benefit of creditors, to be sold and disposed of by him under the directions of the court, free and clear of all judgments, incumbrances and liens, existing at the time of the application, and the proceeds of sale, "after satisfying all judgments, incumbrances and liens," are to be divided amongst creditors. After the application, all the insolvent's property is in the custody of the law, under the absolute control of the court, and must be sold by the trustee, and cannot be sold by any one else, under any circumstances. This is settled law. Acts of 1805, ch. 110, sec. 7; 1808, ch. 71, sec. 3; 1812, ch. 77; 1827, ch. 70. 5 Gill, 178, Alexander vs. Ghiselin. 1 Md. Rep., 471, Waters vs. Dashiell. 3 Do., 463, Manahan, et al., vs. Sammon, et al. 8 Do., 34, Jamison vs. Chesnut. This construction of these laws is based upon reason and sound policy, and should not in any case be departed from. The case at bar is a perfect illustration of the soundness of the principle; it shows what mischief to the rights of creditors may be accomplished, by suffering the property to be taken out of the custody of the law, and sold by any [**4]  one else than the trustee. The property sold by virtue of this distress warrant, to pay $ 958.05 rent, reduces the proceeds of sale from $ 3001.11 to $ 953.82, to be distributed among creditors. Such sacrifice and injury to creditors is intolerable, and shocking to the moral sense of any tribunal. In Waters vs. Dashiel, it was decided that property not returned in the schedule, and not in the custody of the trustee, may be levied upon under a fi. fa., under the provision of the 7th sec. of the act of 1827, ch. 70. Our insolvent laws are not like the bankrupt laws of England. The assignee in bankruptcy cannot sell free of all incumbrances and liens as a trustee can. He takes the property as the bankrupt held it, and all persons having liens can enforce them, unless they come in and prove under the commission, which they cannot do without waiving or giving up their security. 1 Bac. Abr., 685 to 688. It is well settled, that goods in the custody of the law cannot be distrained for rent, and as the property of an insolvent in this State is in the custody of the law, the taking of it in this case by the landlord was illegal and void.

But even if he had the right to seize the property [**5]  by his distress warrant, he certainly had no right to sell it. Rent is not in England a lien on the goods of tenants, until actually seized under a distress warrant. 1 Bac. Abr., 696. Eden on Bankruptcy, 304. It is said that goods may be distrained in England, after a commission of bankruptcy, because they are not in the custody of the law, provided they are distrained before they are sold. 1 Atk., 102 to 104. 1 Bac. Abr., 695, 696, Eden on Bankruptcy, 304, 305. In this case the property had been sold. But it is said it was not delivered to the purchaser. How could it be delivered? It was growing corn and wheat in the straw: the purchaser had no time to take it in possession, even if it had been severed from the free-hold. The contract of sale by the trustee was valid, and the purchasers would doubtless have complied with the sale at a proper time, if the property had not been illegally seized and sold by Tucker. In fact the property was sold by the trustee and could not be distrained. But even if it could under the circumstances be distrained, it could not be sold by the landlord. The trustee was bound to sell and distribute the proceeds under the direction of the court. He had no [**6]  right to connive with the landlord, to benefit him to the prejudice of creditors- It was not for him to undertake to decide who was entitled to the proceeds of his sale: that was for the court. In any aspect therefore in which this case can be presented, the order of the court below must be reversed.

R. H. Marshall for the appellee.

It is assumed by the argument on the other side, that the moment a party petitions for the benefit of the insolvent laws his whole property passes into the hands of his trustee and is in custodia legis, and, therefore, cannot be distrained for rent. Is this so? We say not, and that the property in this case was not in the custody of the law, so far as to protect it from the remedy of distress for rent due at the date of the application.

Rent is not a lien upon the goods of tenants until actually seized under a distress warrant, (1 Bac. Abr., 696; Eden on Bankruptcy, 304,) and this would be lost if the landlord did not proceed to sell. The insolvent acts nowhere invest the trustee with power to sell free of the landlord's right of distress, for rent due at the time of the petition. The remedy of distress is of a paramount character, given [**7]  to the landlord to vindicate his right without a resort to the courts. The act of 1836, ch. 192, enlarges the rights of the landlord and prefers him in certain cases without the levy of a distress, and this shows how favored the landlord is by the policy of the laws of this State. See also the act of 1826, ch. 266. The rent issues out of the land, and it is because of its possession that the right of distress exists. Suppose the rent had been reserved in kind, could the trustee take it and sell it for the benefit of the insolvent's creditors? The remedy of distress is considered in the nature of a remedy upon the land. If the tenant be dead the goods of the deceased remaining upon the land may be distrained in the hands of the executor or administrator for rent accruing before and even after the death of the tenant. Bradley on Distress, in 1 Law Lib., 48. 1 Henry Bl. Rep., 465, Braithwaite vs. Cooksey. 7 H. & J., 123, Howard vs. Ramsay. As early as the case of Selby vs. Magruder, 6 H. & J., 454, the doctrine was announced that the priorities of creditors must exist at the time of the petition, because at that time the law asserts its right and the rights of creditors to be distributed [**8]  to accordingly. So upon death the law asserts the rights of creditors and their priorities are fixed at that time. Dorsey's Test Law, 96. 6 G. & J., 206, State vs. Bank of Maryland. And in the administration of the deceased's estate judgments and decrees have a priority over all other claims. The priorities in this case are just as strongly marked as those under the insolvent system. But still the goods and chattels of the deceased have never been considered in the custody of the law, in a sense that would protect them from the remedy of distress.

The rule of law which declares that the goods of a tenant cannot be distrained for rent, if in the custody of the law, seems to be when the property is taken into custody by some process of law or execution, where special property is created in third persons by the act of law. 1 Law Lib., 49. In those cases the statute of 8th Anne, ch. 14, has provided the landlord with a remedy, and the sheriff is bound to retain for the rent upon notice. In the case of insolvency there is no special property vested in any one. But the property is vested in the trustee for the benefit of creditors generally, according to their legal priorities. But [**9]  a commission of bankruptcy is not an execution within the meaning of the statute of Anne. 1 Law Lib., 50. 2 Term Rep., 601, Buckley vs. Taylor. 15 East., 230, Lee vs. Lopes. The remedy for distress in arrear was not affected by any statute upon bankruptcy. 1 Law Lib., 52. The landlord may distrain so long as the goods remain upon the premises, notwithstanding the possession of the messenger and assignment by the commissioners, and even after a sale by the assignee. I Law Lib., 53. 1 Atk., 103, Ex-parte Descharmes and Ex-parte Plummer. Ibid., 104, Ex-parte Grove. In this case, it is said, the property was sold, but this does not alter the case, the principle is the same.

It is clear that in bankruptcy the property of the tenant is not regarded as in the custody of the law, in a sense which protects it from the remedy of the landlord for his rent under a distress warrant. The proceeding in bankruptcy is not an execution; so the proceedings under the insolvent laws cannot be regarded in the nature of an execution. But it is said the cases of Alexander vs. Ghiselin, Waters vs. Dashiell, Manahan vs. Sammon, and Jamison vs. Chesnut, announce a different doctrine. But, with due submission,  [**10]  nothing can be drawn from the insolvent laws, as expounded by these decisions, which militates against the right of the landlord to pursue his remedy under a distress warrant for rent due at the time of the petition. They simply decide that all the insolvent's property passes into the hands of the trustee to be sold by him, and distributed by him amongst creditors according to their priorities. But there is nothing in those cases which would seem to deprive the landlord of his rent due at the time of the petition. In Waters vs. Dashiell, 1 Md. Rep., 472, it is said: "Looking to the frame and design of our insolvent system, we cannot perceive that there is any material difference between it and the proceedings in bankruptcy, as far as the title to property so situated is concerned." The insolvent system may, in some respects, be more efficacious in the protection of the rights of creditors, but it is no part of its policy to deprive a landlord of his just and equitable right to his rent due at the time of the petition. If Snouffer had not petitioned for the benefit of the insolvent laws, there could be no question of the landlord's right in this case to distrain, although there were [**11]  judgments against him. Does not the trustee take the property subject to the same right? Can it be that, by petitioning, a judgment creditor is, under the policy of the insolvent system, made a lien creditor against personal property, and invested with a right superior to the landlord's right to his distress for rent, which was complete prior to the petition?

It is said the trustee, under any circumstances, was the only person authorised to sell the insolvent's property, and that after the distress warrant was levied the landlord could not sell. This cannot be. If the landlord had a right to seize the property under his warrant, his right to sell was clear; for otherwise his remedy would be imperfect and the rent would be lost.  

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

OPINIONBY:
TUCK 

OPINION:

 [*155]  TUCK, J., delivered the opinion of this court:
Whatever may be the law elsewhere, in this State when a debtor applied for the benefit of the insolvent laws under the act of 1805, ch. 110, and its supplements, his property came under the custody of the law, for the benefit of his creditors.  Alexander vs. Ghiselin, 5 Gill 138. Waters vs. Dashiell, 1 Md. 455. [**12]  And it being well settled that goods in the custody of the law are not liable to be distrained, it follows that the distress relied upon by the appellee cannot be sustained, the property at the time having been beyond its reach.
That a claim for rent is of peculiar character, and may be recovered in full, when other creditors of the tenant will be allowed a dividend only of his estate, cannot be denied. But we do not understand this to be in consequence of the rent being, per se, a lien on goods found on the premises. It is because the law allows the landlord to collect his rent by seizing the property as a pledge, to be dealt with according to its requirements. That it binds as a lien only when this legal right of distress has been exercised, is conceded by the appellee's argument, and the cases referred to show this to be the law. Eden, 304. Bouvier's Bac. Abr., 695. In England the doctrine in cases of bankruptcy is different from the law in this State in cases under the insolvent system. According to their decisions the landlord is allowed a preference, although he distrains after the bankruptcy; but it is upon the ground that the proceedings do not place the property [**13]  in custodia legis, as we hold the acts of insolvency do here. It follows, therefore, 

 [*156]  that if we are right in saying that under our acts of Assembly the insolvent's estate is placed in the hands of the law, the reason of the English rule is against allowing the appellee a preference.  1 Atk. 102, 103, 104.
The legislation upon the subject indicates that rent was never considered as possessing the attributes of a lien. If so, why was it declared by the statute of Anne that sheriffs, levying executions, should satisfy one year's rent? If rent was a lien before the statute, the property passed to the sheriff, incumbered with the landlord's claim; and the plaintiff in the execution could have had satisfaction only after payment of the rent. Again, by our act of 1836, ch. 192, such demands, under certain limitations, are allowed priority in the administration of deceaseds' estates without a distress. Surely this act would not have been passed if it had been supposed that rent was already a lien or incumbrance. The act of 1826, ch. 266, does not, as we think, support the appellee's claim. It relates to removals of property "by the tenant, or by his order [**14]  and direction," declaring certain removals to be clandestine, and does not, in terms or by intendment, affect titles acquired by insolvent trustees.
But we think the act of 1805, ch. 110, sec. 7, is decisive of the question. It gives priority to judgments, incumbrances and liens; but it declares also that no process against the property shall have any effect thereon, "except writs of fi. fa. actually and bona fide laid before the time of the application." Whether a distress for rent levied before that time is process within the intent of the act, does not arise on this appeal; nor would such a construction aid the appellee, because he made no such distress. The point is, whether, without a previous levy, the demand for rent, due at the time of the application, accompanied by a subsequent distress, followed the property as an incumbrance or lien into the hands of the trustee. The design of the law was to prevent creditors from acquiring liens after the application, and to deny preference to claims which had not become liens before. If a distress warrant be regarded as process, it is excluded by the last words of the section, having been levied too late; and if rent is not a [**15]  lien or incumbrance, 

 [*157]  the present claim is not protected by the previous clause. We consider this section as equivalent to a denial of the preference asserted on the part of the appellee.
We do not think that this view of the subject deprives the landlord of any peculiar right. The law has granted him a remedy enjoyed by no other class of creditors. If he fails, when entitled, to avail himself of it, he has no more reason to complain, if loss results, than has a judgment creditor who neglects to sue out his fi. fa. and have it laid before his debtor becomes an insolvent petitioner. As happens in other cases, the landlord here has lost his preference by delay, and we cannot relieve him without disregarding what we take to be well settled principles of law.
The order ratifying audit No. 2 must be reversed, and audit No. 1 ratified and confirmed, according to the case stated; but costs will not be allowed in this court.
Order reversed. 

DISSENTBY:
MASON 

DISSENT:

MASON, J., dissented and delivered the following opinion.
This case comes before us upon an agreed statement of facts, which in substance are as follows:
That John B. Snouffer, on the 3rd of August 1852, petitioned [**16]  for the benefit of the insolvent laws; that A. T. Snouffer was appointed his trustee, accepted the trust and gave bond; that an order was passed by the circuit court to sell the property of the insolvent after giving notice, &c., upon terms, &c.; that the trustee did give the notice, &c., and on the 30th day of August 1852, sold all the property of the insolvent to Miller and Snouffer, &c.; that much of said property consisted in growing corn and wheat in the straw; the corn and wheat were not delivered to the purchasers, but remained upon the premises in the possession and under the control of said trustee; that said insolvent had rented the farm, where the wheat and corn was grown and where it was at the time of the distress, from Charles C. Tucker, under a written lease; that a year's rent was due on the 1st of July 1852, amounting to $ 958.05; that on the 1st of September 1852, the landlord, by his agent, by virtue of a warrant of distress, seized the property of the insolvent aforesaid, 

 [*158]  and actually sold the said corn and wheat to pay said sum of $ 958.05 rent, while said corn and wheat were on the said premises in the possession and under the control of said trustee,  [**17]  &c.
"It is further agreed, that if this court shall be of opinion, upon this statement and the proceedings of the case, that said Tucker, by Robert Boone, his agent, had no legal right to seize and distrain and sell the said property of the insolvent petitioner, as aforesaid stated, in the custody and possession of the said insolvent's trustee, under and by virtue of said distress warrant, to pay the full amount of said rent due to Tucker on the first day of July 1852, in exclusion of the judgment creditors of the insolvent petitioner, then, and in that case, the report No. 1 of Grayson Eichelberger, the special auditor, made in this case under the instructions of the counsel for the judgment creditors, shall, by the judgment of this court, be ratified and confirmed, and the report of said auditor No. 2 be rejected. But if this court, on the contrary, shall be of opinion that the said Tucker, by his agent, Robert Boone, had a legal right to seize, distrain and sell said property, by virtue of said distress warrant, which was in the custody and possession of the said trustee, as stated, and thereby obtain a priority of right over the judgment creditors, as claimed and shown [**18]  by report No. 2 of said special auditor, that then said auditor's report No. 2, made under the instructions of the said trustee's counsel, shall be ratified and confirmed by the judgment of the court, and the auditor's report No. 1 rejected; and that either of the parties may appeal to the Court of Appeals of this State, from the judgment of this court, and all the proceedings on said judgment shall be staid until the determination of such appeal." This case was submitted to the circuit court upon the said statement of facts; and the said circuit court, on the 2nd day of June 1856, ordered and decreed, that in conformity to the written agreement of the counsel, the auditor's report, No. 2, in the case, be finally ratified and confirmed, and that the trustee pay out the funds as distributed therein.
It will be observed that audit No. 1, disallowed the claim for rent as a preferred debt against the insolvent's estate, while 

 [*159]  audit No. 2, was based upon the theory, that the landlord's right to distrain and sell were not impaired by the insolvent's application, and accordingly it deducted from the assets in the hands of the trustee, the sum of $ 1588, being the amount [**19]  of the sale under the distress for rent.
Subsequently, upon the argument in this court, the counsel entered into a supplemental agreement, the effect of which was to authorise this court to order a special audit, in the event of its appearing, that neither of the accounts stated below was based upon correct principles.
Independent of the supplemental agreement, I have no hesitation in saying, as my opinion, that while counsel can agree among themselves as to the particular facts to be submitted, and thus to confine the court to those facts in the opinion they are to pronounce, yet they cannot require the court, by any agreement into which they may enter, to draw any particular conclusions or deductions from those facts. The judicial mind must be left free to draw its own conclusions upon the law, as applied to the facts of each case, whether they be agreed upon, or elicited in the usual way, from evidence regularly offered. Hence it was not in the power of counsel in this case to confine the court to the adoption of either audit No. 1 or No. 2, if neither was deemed to rest upon sound legal principles; and, if the supplemental agreement was out of the way, I should still have had [**20]  no difficulty in ordering such other account to be stated as would conform to our views, notwithstanding the original agreement sought to limit us to the two before us.
Upon the facts, as thus set forth, the first question which arises is, was the property, which was in the possession of the insolvent's trustee at the time it was seized under the distress, in the custody of the law?
It is an old and well settled rule of the common law, that goods already in the custody of the law cannot be distrained, and if the possession in this case, by the trustee, is the custody of the law, as the appellant contends, then the distress was clearly illegal, and all proceedings under it.
In England it has been settled, that a commission in bankruptcy does not prevent a landlord from distraining for rent; 

 [*160]  "for this," the chancellor says, in Ex-parte Grove, 1 Atkin's Chan. Rep., 104, "is not such a custodia legis as an execution is." See, also, the cases of Ex-parte Plummer, ibid., 103.  Buckley vs. Taylor, 2 Durn. & East. 600. Lee vs. Lopes, 15 East, 230. Bradley on Distress, 81.
Our insolvent laws, in this particular, differ [**21]  materially from the bankrupt system of England. The act of 1805, ch. 110, sec. 7, provides, that no process against the debtor's real or personal property, issued after his application, "shall have any effect thereon." In contemplation of this provision, a distress for rent is a process, and the purpose of the framers of the law was, to place the debtor's property, after his application, beyond the reach of every process or proceeding, including a distress for rent, by which one creditor could secure a preference over other creditors, not existing at the time of the application, except only property not embraced in the schedule, as provided for by the act of 1827, ch. 70, sec. 8. In this view, property held by an insolvent's trustee, may be regarded as in the custody of the law. We have virtually so said before, in the case of Waters vs. Dashiell, 1 Md. 455. The court in that case say: "Our insolvent system, while granting relief to the debtor, also protects the creditors to the full extent of the property to which they may look for satisfaction of their claims. This is done by taking all his property out of his possession and control, and placing it [**22]  in the hands of the law, by the agency of a trustee." It has also been settled by a number of cases in this court, that the trustee in insolvency, is the proper and only party to sell and administer the insolvent's estate. When the estate passes to him, he takes it subject to all liens or priorities then existing, or which may afterwards be created against such portions of it as may not have been embraced in the schedule, under the provisions of the act of 1827, ch. 70, sec. 8, as construed in Waters vs. Dashiell. All inchoate titles, resulting from judgments, and other liens, are suspended and merged in the paramount title of the trustee, who is the representative of the rights and interests of all parties concerned in the estate.  Jamison vs. Chesnut, 8 Md.  34, and the cases there cited.

 [*161]  Upon the principles which have been laid down, and which we think are fully sustained by authority, it follows that the levying of the distress in this case, and the sale of the tenant's property by the landlord, after his application, were clearly illegal and void.
This leads to the second inquiry, that arises in this stage of the case, which is, whether [**23]  rent, due at the time of the tenant's application for the insolvent laws, is such a lien or incumbrance, within the meaning of the 7th sec. of the act of 1805, ch. 110, as attaches to, and passes with the insolvent's property, to his trustee as a preferred debt?
This is a new question in the courts of Maryland, and one of important practical bearing, and no doubt one of frequent occurrence, in the business affairs of the community. The only explanation, it is supposed, that can be given, why the question has never been raised before in a court of justice is, that the public have acted uniformly upon the assumption, that the landlord's claim for rent was a preferred debt against an insolvent's estate: and this assumption I think is correct. The policy of the law seems always to have been, to invest the claim to rent with a peculiar and superior dignity and importance. It is one of the rare cases in which the law allows a man to be his own avenger without the aid of the process of a court. This right has been sacredly preserved from the earliest times, and by the statute of 8 Anne, ch. 14, sec. 1, (which statute is in force in this State,) the rights even of judgment [**24]  and execution creditors, have been made subordinate to it. I cannot therefore agree, that a mere application for the benefit of the insolvent laws, should have the effect of defeating the claim for rent, which has always been regarded as resting upon such high grounds. All the analogies of the law, as well as the almost universal practice in Maryland, conflict with such a theory.
I learn, but pass no opinion upon the subject, that the practice in Baltimore has always been, even prior to the act of 1836, ch. 192, to regard rent as a lien upon the estate of deceased parties, and first to be paid, notwithstanding the provision of the act of 1798, ch. 101, sub-ch. 8, sec. 17, giving a 

 [*162]  preference, in the settlement of such estates, to "judgments and decrees." This practice, whether right or wrong, is only referred to as affording evidence of the estimate usually placed upon the claim for rent, by the legal profession in Maryland.
The view thus taken is further strengthened by the act of 1826, ch. 266, making all removals of property liable for rent, clandestine, whether made by day or night, excepting only such property as shall "have been sold to a bona fide purchaser,  [**25]  without notice, or taken in execution." A title acquired by a trustee in insolvency will not defeat, it appears, the landlord's right to pursue property thus removed, and here is a clear recognition of the superior character of the claim to rent.
It is not necessary for us to say, that technically speaking, and for all and every purpose, rent is a lien upon the property of a tenant. I mean only to say, that it was not the purpose of the act of 1805, ch. 110, nor of any of its supplements, to defeat the priority of rent due, and that the language of the seventh section, preserving the priority of "all judgments, incumbrances and liens," must be taken as embracing rent due. In many books of high authority, rent is called, in express terms, a lien on the bankrupt's goods. In Eden's Bankrupt Law, 303, the eighth sec. of ch. 17 is headed, "Landlord's Lien for Rent." It is there said, "a landlord having a legal right to distrain goods, as long as they remain on the premises, neither the issuing the commission, nor the possession of the messenger, nor even the commissioner's assignment, will deprive him of his legal lien." So also in the case of Dod vs. Saxby, 2 Strange 1024, [**26]  the court speaks of rent as "a lien." And again in the case of Stevenson vs. Wood, 5 Esp. N. P. Cases 200, Lord Ellenborough said, that the landlord had "a legal lien on the bankrupt's goods, unconnected with the bankruptcy." And again in the case still more in point, Ex-parte Plummer, 1 Atkyn's Chan. Rep., 103, the Lord Chancellor, (Hardwicke,) says: "I am of opinion that the landlord is entitled to distrain the goods remaining on the premises, for his whole rent, notwithstanding the commission of bankruptcy, and the proceedings thereon. There was a case before the Lords Commissioners of the Great Seal, where the landlord, 

 [*163]  though he had made no distress, yet was considered to be within the equity of the statute (of Anne) which gives him a year's rent upon execution." See also the case of Duck vs. Braddyll, 13 Price 455, (6 Eng. Exch'r Rep., 162.)
All the foregoing cases, being English cases, rest upon the principle, that goods held under a commission in bankruptcy, were not in custodia legis, but that a landlord could as well enforce his lien for rent, by distraining, after as before bankruptcy. But not so with the goods of an insolvent [**27]  under our system, as we have already said, for they are in the custody of the law, and although a landlord has a lien for his rent, that lien is suspended by the tenant's application for the insolvent laws, and passes with the property into the hands of the trustee.
The suggestion, that because the landlord's right to distrain his tenant's goods, did not follow the goods when removed from the premises, therefore there could be no lien, has no especial force in it. There are many cases of special lien, arising out of the actual possession of personal property, as for example, a horse held for livery, clothes held for the cost of making them, and the like, where the lien is lost as soon as the possession is parted from. Yet they are not the less liens because they can thus easily be defeated. So the landlord's lien for rent is a special lien; continuing only so long as the right to distrain continues, unless that right is suspended by some operation of law, as in the case of an application in insolvency.
It is not necessary for us to say, whether or not the landlord's claim for rent, as against an insolvent's estate, is within the equity of the statute of Anne. The analogies of the [**28]  statute are in strong support of the principles which have been announced as governing this case, but I do not say that it is embraced within the equitable provisions of that statute. If made applicable to cases like the present, that statute would require a trustee in insolvency to pay a year's rent in arrears, before he could remove the insolvent's property, provided the landlord should serve notice upon the trustee, (in pursuance of a decision upon the statute, made in the case of Waring vs. Dewberry, 1 Strange 97,) of the amount of rent due. Neither 

 [*164]  of the above requirements of the statute of Anne is necessary to be observed in cases of rent due by an insolvent. The claim for rent passes with the property to the trustee, as all other liens, to be established upon the usual notice given by the trustee to creditors to file their claims. When once established by legal proof, as other debts are proved, it is to be paid as a preferred debt, in this case, over all other debts and incumbrances existing against the estate: the fund being still under the control of the trustee, as appears from the record, this can readily be done.
In accordance with the [**29]  views expressed in this opinion, I would reverse the order of the circuit court, which legalized the distress and the sale under it, and refer the case to a special auditor, in pursuance of the agreement of counsel, with directions to state another account between the trustee and creditors, allowing and preferring the landlord's claim for rent, but disallowing the costs and expenses of the proceedings under the distress.