1 of 47 DOCUMENTS 

RICHARD H. ATWELL vs. JOSEPH P. GRANT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 101; 1857 Md. LEXIS 26 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $ 870.14, dated on the 26th of December 1851, payable at six months to blank order, drawn by one West, and endorsed by the defendant and others. Plea, non assumpsit.

1st Exception. The plaintiff proved the defendant's endorsement, and then offered in evidence the note and the protest thereof, made at the request of the cashier of the Farmers and Planters Bank of Baltimore, stating the demand on the maker, refusal to pay, and that notices were addressed to the endorsers, "informing them it had not been paid, and that they would be held responsible for the payment thereof, which notices were left at their respective places of business." He also offered in evidence an affidavit, under the 8th sec. of the act of 1844, ch. 280, made by the plaintiff before the clerk of the criminal court of Baltimore, that he had received the note without a stamp, through inadvertence, and not with any intention to evade the stamp law, and a receipt of the same clerk for the $ 10 penalty and stamp. The defendant objected to the admissibility [**2]  of this evidence, including the note and protest, upon the grounds stated in the opinion of this court, but the court below (FRICK, J.,) overruled the objection, and the defendant excepted.

2nd Exception. The plaintiff, further to support the issue on his part, called upon the defendant to produce the notice of protest of the note in suit, served on the defendant by the notary who protested the note, and not being produced, offered to prove by the notary that he served a copy of a paper (which was produced) containing the names of the drawer and endorsers, date and amount of the note sued for in this case, upon the defendant, on the day of the maturity of the note, which paper is a notice in due form, stating that demand of payment had been duly made upon the maker, and refused. To the admissibility of this testimony the defendant objected, but the court overruled the objection, and the defendant excepted.

3rd Exception. This exception, which was also taken by the defendant, is fully stated in the opinion of this court.

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The clerk of the criminal court of Baltimore, by the 16th sec., art. 4th of the Constitution, is required to perform all the duties previously vested in the clerk of Baltimore city court, and may, therefore, take the affidavit provided for by the stamp law of 1844, ch. 280, sec. 8.

The act of 1856, ch. 352, repeals the stamp laws, and makes valid all notes, bills or bonds, which had been previously executed without a stamp.

Notice to produce is not necessary, where the instrument to be proved is itself a notice of the protest of a promissory note.

In a suit against the endorser of a promissory note, the defendant, himself, proved that the demand was made on the maker by the clerk of the notary, and that it was the universal custom of notaries public to make such demands by their clerks. HELD:

That this evidence having been offered by the defendant, and admitted without objection, the court below was right in rejecting his prayer asserting that there was no sufficient evidence of a demand upon the maker, and that the demand could only be made by the notary himself.

When evidence which would have been rejected as inadmissible, if objected to, is received without objection at the trial below, it is evidence in the cause, and must be treated as such in the appellate court.  

COUNSEL:
James Malcolm for the appellant, said [**3]  he would not urge the first exception, since the decision of the case of Reynolds vs. Furlong, 10 Md. 321. Upon the other exceptions he argued:

1st. That the evidence of the notary to prove the contents of the notice of protest served upon the defendant, should have been rejected, because the notice to produce the original was too late, having been given at the trial of the cause. 6 Md. 10, Atwell vs. Miller.

2nd. The evidence in the third exception was offered, by the defendant, for the purpose of showing that the notary did not, himself, make the demand and give the notice, as stated in the protest, but that it was, in fact, made by his clerk. This clerk was a stranger to the note. The bank placed it in the hands of the notary, as their agent, to make the demand and give the notice. The notary being thus the agent of the bank, and clothed with delegated authority, could not delegate that authority to another. The notice, therefore, which was given to the endorser in this case, being given by a third person, a stranger, and one who could not take the note up, was a nullity. The demand should have been made and given by the notary himself. Story on Prom. Notes, secs.  [**4]  300 to 302. Byles on Bills, 225. 2 Camp., 177, Stewart vs. Kennett. 15 Mees. & Wels., 234, Harrison vs. Ruscoe. 3 Hill, 56, Onondaga Bank vs. Bates. 7 Humph., 548, Carter vs. Union Bank. 4 How., (Miss. Rep.,) 567, Carmichael vs. Bank of Pennsylvania. 3 McLean, 481.

For these reasons the ruling of the court in the third exception was erroneous, and both of the defendant's prayers should have been granted.

St. Geo. W. Teackle for the appellee, stated that the clerk of the criminal court of Baltimore had authority, under the 13th and 16th secs. of the 4th art. of the Constitution, to take the affidavit mentioned in the first exception, and then argued:

1st. That it was clearly competent for the plaintiff to prove, by the notary, the contents of the notice of protest served on the defendant. There was no notice given to produce the original paper; the record merely states that the paper was called for. But no notice to produce was necessary, for it would have been but a notice to produce a notice, which is never required; and in 1 Greenlf. on Ev., sec. 561, the very case of notice to produce a notice of protest of a bill of exchange, is put as an illustration of this rule.  [**5]  

2nd. The evidence in the third exception was offered by the defendant himself, and was received without objection, and must have the same effect as if admitted according to the strict rules of evidence. 7 G. & J. 79, Farmers Bank vs. Duvall. It proves that it was the universal custom, in the city of Baltimore, for notaries to make demand through their clerks, and that the demand in this case was duly made, and the notice given, by the clerk of the notary. From the effect of this, his own testimony, the defendant cannot now escape. But in cases of inland bills of exchange and promissory notes, a protest is not necessary; and if so, the demand and notice need not be made and given by a notary, but be made and given by any party who is the agent of the holder. The clerk, in this case, was the agent of the bank, the holder of the note, and his acts the plaintiff has adopted. An agency can as well be constituted by subsequent adoption and ratification as by previous authority.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*104]  ECCLESTON, J., delivered the opinion of this court.
The first bill of exceptions shows that the defendant [**6]  objected to the admissibility of the evidence offered on the part of the plaintiff, for the following reasons:
"Because the note had not been stamped, as required by law, and because the affidavit was not such as the act of 1844, ch. 280, sec. 8, required to be made, and because the affidavit was made, not before the clerk of the city court of Baltimore, but before the clerk of the criminal court of Baltimore, and because the penalty was paid to the clerk of the criminal court of Baltimore city, and because said affidavit did not meet the requirements of the act of 1844, ch. 280, sec. 8."
Under the 4th article and 16th sec. of the present Constitution, we are disposed to think the affidavit above alluded to, was properly made before the clerk of the criminal court of Baltimore; and that he had authority to receive the penalty. But if this be not so, still the decision below, overruling the objection to the plaintiff's proof, cannot be reversed; because the act of 1844 has been repealed by the act of 1856, ch. 352, the 5th section of which provides, "That all bills, notes or bonds that have been drawn previous to the repeal of this act, and have not been stamped, shall be as good [**7]  and valid as though they had been stamped, and all debts that have been created, where the proper vouchers are shown, shall be as valid in law as though the stamp act had never been passed."

 [*105]  In regard to this repealing law, the court say, in Reynolds vs. Furlong, 10 Md. 318, "The passage of this act will relieve the case of all difficulty, upon a subsequent trial, upon the subject of the stamp, as now no stamp is necessary to render the note a valid instrument of evidence."
The second bill of exceptions also presents a question in regard to the admissibility of evidence.
The defendant contends that the plaintiff had no right to offer evidence, by Johnson, the notary, that he served upon the defendant a copy of the notice of protest, because a call, at the time of trial, for the production of the same, alleged to have been given to the defendant, was the only notice served on him to produce it, which was not in due time. But it will be seen, by reference to 1 Greenlf. on Ev., sec. 561, that this objection to the proof offered, cannot be sustained. It is there said, that notice to produce is not necessary, "where the instrument to be proved is [**8]  itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange."
The third bill of exceptions contains the following statement:
"And the defendant's counsel proved, by Johnson, the notary public mentioned in the 2nd exception, that he did not make the demand himself, but that said demand was made by his clerk, Mr. Long, as Mr. Long informed him, and that it was the universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person. The counsel for the defendant then asked said witness whether he had any record or paper in his possession which would show that Mr. Long had made said demand, and if he had, to produce it. The witness then produced said paper. The plaintiff's counsel here asked the defendant's counsel whether he meant to make said paper evidence in the case, to which he replied, yes. The paper was then read in evidence, to wit:"
The paper, however, is omitted, and the exception proceeds by saying, "The said witness further stated that said paper is in his own handwriting, and that the initials opposite the 

 [*106]  names of the maker [**9]  and endorsers, respectively show who made the demand upon the maker, and who served the notices upon the endorsers, and that the paper showed that said demand upon the maker was made by his clerk, Mr. Long, and that the notices to the endorsers were served by him; and the witness further stated, that the said paper or memoranda were written by him either on the day the demand was made, or on the morning following, as he frequently was kept in his office until one or two o'clock in the morning; that he could not now recollect, without reference to the note in suit, or a copy, or the protest or other memoranda, the date and amount of said note, or when it was due, or the names or the order in which the names were put upon said note. Whereupon the defendant, by his counsel, prayed the court to instruct the jury as follows:
"1st. The defendant prays the court to instruct the jury that the plaintiff is not entitled to recover in this case, because there is no evidence of a demand having been made upon the drawer of the note in controversy, as required by law.
"2nd. That if the jury believe, from the evidence, that Mr. Johnson, the notary, did not make the demand upon the drawer of the [**10]  note at its maturity, then there is no evidence of a demand having been made, and the plaintiff is not entitled to recover."
The court refused to give the instructions, and the defendant excepted.
Thus it appears the defendant, himself, introduced evidence showing that it was the "universal custom of notaries public to make such demands by their clerks, as it was impossible for a notary public to make every demand upon notes left with him, in person:" that the demand upon the maker of the note in controversy had been made by the clerk of the notary, and that the notices to the endorsers were served by the clerk also.
Should it be conceded that if such proof had been offered by the plaintiff, and objected to by the defendant, it should have been rejected as inadmissible, still, when introduced by the defendant at the trial below, without objection from any quarter, it is evidence in the cause, and to be treated as such, 

 [*107]  in the appellate tribunal. In Farmers Bank of Maryland vs. Duvall, 7 G. & J. 78, it is said: "But reliance is placed upon the inadmissibility of the evidence to establish the notice, and time of notice, growing out of the want of proof [**11]  that these entries were made by the cashier, in the line of his duty, as an officer of the bank. We, however, think that no such objection can now be taken to the evidence, for it was all admitted, without objection, in the court below, and having been so admitted, it is and ought to have the same effect as if admitted according to the strict rules of evidence."
When the proof which has been given in regard to a demand by the clerk, is considered in connection with the evidence relative to the custom, as above stated, we cannot say the court below erred in refusing the defendant's prayers, or either of them.
The first assumes there is no evidence of a sufficient demand upon the maker. The second insists that the demand could only be made by the notary, himself. Neither of the prayers raises any question in reference to whether the notices to the endorsers were served by the proper person.
Judgment affirmed. 

2 of 47 DOCUMENTS 

GEORGE HOLLAND vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, AND CHARLES HOWARD, Collector.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 186; 1857 Md. LEXIS 33 

DECEMBER, 1857, 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.,) dissolving an injunction upon bill, answer and exhibits.

The bill, filed by the appellant, alleges, in substance, that the complainant is the owner of a lot fronting on Hollins alley, which has been advertised for sale by Charles Howard, the city collector, to pay a paving tax alleged to be due thereon, for the paving of said alley between Lombard and Pratt streets; that this tax is not due and payable by law, and that the proceedings of the city commissioners, in regard to said paving, are irregular, illegal and void, the application therefor never having been made or assented to, in writing, by the proprietors of a majority of the feet fronting on the alley to be paved, because George H. Steuart, who signed the application as owner of 195 feet, was not the true owner of but a part thereof within the intent and meaning of the acts of Assembly relating to the paving of streets in the city of Baltimore, he having, prior to the application, leased the larger part thereof for ninety-nine years, and the proceedings relating to the paving, therefore, created no [**2]  liability in law upon the lot of the complainant; that said paving tax is not a lien upon the lot, and the city collector has no authority to sell the same; that the contractors who did the paving withdrew from the city collector their bills therefor against the complainant, which had, under the ordinances of the city of Baltimore, been placed in the hands of said collector for collection, and at the time of such withdrawal the said contractors paid or secured to the collector the commissions on such bills due under the city ordinances, and that the collector afterwards levied a distress upon the goods and chattels to satisfy this tax, claiming authority for the same under the ordinances of the city; and that said goods and chattels were replevied, which replevin is still pending in the Court of Common Pleas; that in the contract for this paving there is a clause inserted that the city should not be responsible for the payment of the paving done under it, and that in consequence of this clause, and the aforementioned withdrawal, said tax ceased to be collectable as a public due or tax. The bill then prays for an injunction to restrain the city authorities and the collector from proceeding [**3]  to sell the complainant's lot for this paving tax, and for general relief.

The injunction having been granted the defendants filed their answers. That of the Mayor & City Council insists, that the proceedings in relation to the paving of this alley were in compliance with the act of Assembly and city ordinances in such case made and provided, that the paving tax was legally assessed, and is a lien on the complainant's lot, and without admitting or denying the statements in the bill, further than to refer to the answer of Howard, the city collector, as containing the statement of facts which it is believed to be correct, submits to such decree as the court may think proper to pass.

The answer of Howard admits that the complainant is the owner of the lot referred to in his bill, and that the same was advertised for sale as alleged, but denies that the proceedings, in reference to the paving of this alley, are irregular, or that said tax was illegally assessed, but, on the contrary, insists, that the same is legal, and is a lien on the said lot, and that the decision of the city commissioner, as to the sufficiency of the application to pave, is final and conclusive, and that [**4]  a court of equity has no power to review his determination in a question of fact specially committed to him by the acts of Assembly and ordinances of the city. He also insists, that the complainant has been guilty of such laches as deprives him of a standing in this court, by waiting till the paving was done before he objected thereto, when he had notice of the application and determination to pave by the publication of the same in the newspapers; that the contractors made the contract and did the paving in good faith, and will suffer loss if this court shall now adjudge the proceedings illegal, because their contract releases the city from all responsibility for payment of said paving; that the facts alleged in the bill do not show such irreparable loss or damage as will give the court jurisdiction to interpose by way of injunction, and that the complainant has his remedy at law against the Mayor & City Council if the paving and assessments are illegal. He denies that the execution, by George H. Steuart, of the leases mentioned in the bill, deprived him of the ownership of the ground so leased, within the true meaning of the acts of Assembly in such case made and provided. He admits [**5]  the distraint and replevin alleged in the bill, and insists that the ordinances of the city give him the additional remedy by sale, to which he has in this case resorted; and further states, also, that he is informed and believes, that the bills for paving, mentioned in the bill of complaint, were returned to his predecessor in office, and denies that the withdrawal and return altered the character of the same, and insists that they are still a public tax and collectable as such.

The facts appearing from the exhibits filed with the bill and answers are sufficiently stated in the opinion of this court. A motion was then made to dissolve the injunction, which was heard upon bill, answer and exhibits, and from the order of dissolution the complainant appealed.  

DISPOSITION:
Order reversed, and injunction made perpetual.  

HEADNOTES:

The lessee for ninety-nine years, or for ninety-nine years, renewable forever, and not the owner of the fee, is the owner or "proprietor" to assent to the paving of unpaved streets in the city of Baltimore, under the acts of 1797, ch. 54, sec. 2, and 1817, ch. 148, sec. 18; in the construction of these acts that of 1833, ch. 40, sec. 3, being in pari materia, ought to be adverted to.

Unless the owners of a majority of the feet fronting on the street to be paved, assent in writing to the paving, the proceedings of the city authorities, directing the paving to be done, are null and void, and a court of equity has, upon application of the non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pay for such paving.

Where ample and perfect justice can be done, equity will interfere to prevent multiplicity of suits, and equity will not allow a title, otherwise clear, to be clouded by a claim which cannot be enforced either at law or in equity.  

COUNSEL:
Bernard Carter and J. M. Campbell for the appellants, argued:

1st. That all the preliminary proceedings prescribed in the acts of Assembly and ordinances of the city, regulating the paving and repaving of streets, must appear to have been strictly complied with, otherwise, as to those proprietors who do not assent, the whole proceedings will be null and void, and impose [**6]  no liability upon them for any portion of the paving tax. The most important of all these preliminaries, is the assent, in writing, of the owners of a majority of the feet of ground fronting and binding on the street, lane or alley to be paved. This assent is made the foundation of all proceedings relating to paving, and without it, they are all, including the tax, null and void. Act of 1817, ch. 148, sec. 18. 8 Md. 352, Henderson vs. Mayor & C. C. of Balto. 4 Hill, 76, Sharp vs. Speir. 5 Gill 383, Alexander, et al., vs. Mayor & C. C. of Balto. Rev. Ord. 1850, No. 15, passed May 20th, 1850.

2nd. That the lessor of a term for ninety-nine years, or for ninety-nine years, renewable forever, is not the owner or proprietor, for the purpose of assenting to the paving of a street, but that the lessee is, for this purpose, the only true owner or proprietor. This results from the true construction of the several acts of Assembly on this subject, all of which should be taken and considered as parts of one homogenous system, as well as from a consideration of the respective rights and obligations of the lessor and lessee of such terms, as they exist at common law. The right to pave [**7]  is derived from the acts of 1797, ch. 54, sec. 2, and 1817, ch. 148, sec. 18, the latter of which requires the assent of the "proprietors" of a majority, &c. The act of 1833, ch. 40, relating to repaving, upon application made by the "owners" of two-thirds, &c., expressly provides, in its 3rd section, that the lessee of such a term "shall be deemed and taken as an owner, within the meaning of this act." Here is a legislative definition of the term owner, for such purposes, and these acts being in pari materia, they must be construed together, and the same definition applied to the equivalent term "proprietor," in the former act. See, also, Ord. May 20th, 1850, No. 11. Rev. Ord., 1850, sec. 21. 5 G. & J. 67, Hughes vs. Young. 2 Paige, 69, Astor vs. Miller. Ibid., 434, Gouveneur vs. Mayor & C. C. of New York. If all the burdens are on the lessee, the right of determining whether those burdens shall be increased, should be with him alone. Chancellor Kent says, a long lease is considered a muniment of title, and equivalent in some respects to an estate in fee. 4 Kent, 86. The termor has been universally considered the owner, for all such purposes; the reversioner has nothing but a [**8]  dry, naked, legal title. If, then, the lessee is the party to make the application, it is perfectly manifest, from the facts appearing on this record, that a majority of the proprietors never did assent to this paving; for, in order to make such majority, at least a portion of the feet leased by Geo. H. Stewart, must be included in the estimate.

3rd. That the collector having elected, out of the remedies given him by the ordinances for the collection of paving taxes, that by distress upon personal property, and a sufficient amount having been seized to satisfy this tax, he has no right to sell the lot for the same purpose, until he has first exhausted the personal property so seized. Ord. May 20th, 1850. Rev. Ord., No. 11, secs. 21, 22, 29. 2 Paige, 434. 1 H. & McH., 408, Waters vs. Caton. 4 Johns. Rep., 407, Olcott vs. Lilly. 6 J. J. Marshall, 487, Williams vs. Gill. 6 Md. 71, Eschbach vs. Pitts.

4th. That the bills having been withdrawn from the city collector, he had no power to sell; for he has only such power of sale "where it is his duty to collect." Ord. No. 11. Rev. Ord. 1850, sec. 31. The collector and his sureties cease to be liable for the collection of the [**9]  bills so withdrawn, and it cannot be that a public officer can have power to collect, where he is not responsible for the collection. Nor can the return of the bills alter the case; for if the right to collect is once gone, it cannot be assumed again by the collector, of his own accord.

5th. If, upon any of these grounds, the proceedings were irregular, null and void, then the question remains, had a court of equity jurisdiction to restrain, by injunction, the city authorities from selling the lot, or collecting the tax? The answer of the city does not take the objection to the jurisdiction, and, since the act of 1841, ch. 163, it cannot be raised in this court. But, even if the question is open, we still insist that the court had jurisdiction. The ground of this jurisdiction may be considered as this, that where public officers are vested with certain powers and authority to do certain things, and especially to take private property for public use, or to do any thing which could only lawfully be done by virtue of the authority given by the acts of the Legislature, and where the limits of their jurisdiction are marked out and defined by the act giving the authority, then a court [**10]  of equity will interfere, by injunction, to restrain those invested with this authority from exceeding its limits, or doing any thing that affects the rights of private individuals, under color of their authority, if what is proposed to be done is not authorized by the act appointing and giving the power. This seems to be the result of the authorities. 1 Bland, 584, Pascault vs. Commissioners of Balto. 4 Gill 402, Dolan & Foy vs. Mayor & C. C. of Balto. 1 Eng. Railway & Canal Cases, 101. 2 Amer. Railway Cases, 200, Jordan vs. Phil., Balto. & Wil. Rail Road Co. 4 Mylne & Craig, 17, 116, 120, 249, 255. 2 Paige, 434, Gouveneur vs. Mayor & C. C. of New York. 3 Do., 573, Champlin vs. Mayor & C. C. of New York. 6 Do., 83, Mowhawk & Hudson Rail Road Co., vs. Artcher. 13 Barb., 567, Christopher vs. Mayor & C. C. of New York. 16 Do., 392, De Baun vs. Mayor & C. C. of New York. 2 Dow., 521, Sthand vs. Henderson. 8 Gill 434, Richardson vs. Mayor & C. C. of Balto. 5 Gill 383, Alexander, et al., vs. Mayor & C. C. of Balto. Again, courts of equity will interfere to prevent multiplicity of suits, and by injunction, in such cases also, to prevent a cloud being thrown over one's title.  [**11]  2 Story's Eq., sec. 955. 3 How., 459, Carroll vs. Stafford. 5 Paige, 493, Pettit vs. Shepherd. 10 Md. 418, McCann vs. Taylor.

6th. The complainant has been guilty of no such laches as will prevent him from availing himself of the aid of a court of equity. The parties doing the paving are bound to see that the proceedings are regular, and must take the consequences if they are not. 8 Md. 352, Henderson vs. Mayor & C. C. of Balto. There was no notice to him, either actual or constructive; nothing to show that he knew the paving was going on. Nor has he any remedy at law. The remedy by certiorari would not meet this case; for that writ would have only brought up the proceedings of the city authorities, and these would have shown, on their face, that to be true which the complainant alleges to be false, and he would have been bound by the return, and could not, under that writ, have shown that a majority of the owners did not assent.

E. Wyatt Blanchard for the appellees, argued:

1st. The court of equity had no jurisdiction, because the bill does not allege, nor do the facts show, that any real damage will be sustained by the complainant, but the prayer for relief [**12]  is founded on the mere alleged irregularities of the city authorities, for the correction of which certiorari or mandamus is the appropriate remedy. 8 Gill 150, Swann, et al., vs. Mayor & C. C. of Cumberland. 6 Johns. Ch. Rep., 28, Mooers vs. Smedley. 4 Do., 352, Le Roy vs. Mayor & C. C. of New York. There is no allegation that the trespass works irreparable mischief, which is essential to all such bills, and is contained in all the cases cited. It can make no difference that the defendant is a corporation; it matters not by whom the wrong is done; the test in the one case is the charter of the corporation, in the other the common law rights of individuals; the wrong is the same whether done by a corporation or an individual; it is still a trespass which equity will not interfere to restrain, unless to prevent irreparable mischief likely to result from it, or unless there be some circumstances of fraud or inequitable advantage taken, none of which are alleged in the bill or established by the facts set forth in it. 8 Gill 433, Richardson vs. Mayor & C. C. of Balto. 9 G. & J. 468, Amelung vs. Seekamp. 10 Do., 358, Fowler vs. Lee. 6 Gill 401, Methodist Church vs. Mayor [**13]  & C. C. of Balto. 7 Johns. Ch. Rep., 315, Jerome vs. Ross. 1 Md. 535, White vs. Flannigain. 3 Md. 480, Ches. & Ohio Canal Co. vs. Young. If the assessment is no lien, as alleged in the bill, no title passes by the sale of the collector, and the complainant will sustain no injury, (8 Gill 260, Alexander vs. Walter,) and if he pays the tax to save his property from sale, he can recover from the city if illegally collected, or can have his action for damages against the city authorities. 6 G. & J. 298, Ranahan vs. O'Neale. 4 Barb., 198. But if the assessment be collected by sale or otherwise the complainant sustains no injury, for the amount of the assessment is the equivalent for the benefit done his property by the paving, which benefit he now enjoys. The question of jurisdiction is distinctly raised in the answer of Howard, which is referred to and adopted by that of the Mayor and City Council.

2nd. The conduct of the complainant is a bar to the relief prayed. Having notice of the application to pave an alley binding on his property, he made no objection to the sufficiency of the application, though the same objections existed then. The application being, on its [**14]  face, sufficient, and no one objecting to its sufficiency, the paviors contracted to do the work, and in their contract bound themselves not to hold the city responsible, but to look to the property holders for payment. The complainant looked on while his property was being improved at the expense of the paviors, and only applied for an injunction when required to pay his proportion of the cost of the improvement. 6 Gill 391, Methodist Church vs. Mayor & C. C. of Balto. 1 Md. 525, White vs. Flannigain. 9 G. & J. 468, Amelung vs. Seekamp. 3 Mylne & Craig, 784, Greenhalgh vs. Manchester & Birmingham Railway Co. 6 G. & J. 309, Gott & Wilson vs. Carr.

3rd. The application to pave was sufficient to give jurisdiction, and was in accordance with the requirements of the act of Assembly which requires ownership. It is not denied that General Steuart is an owner. The covenant of the lessee, which is relied on to show his exclusive right to sign, is a covenant to pay public dues and assessments. The paving tax is a matter of private interest--an assessment for a private benefit. The paving is done under authority derived from, and the tax is assessed upon property holders [**15]  of, the particular locality, not upon the public at large. The tax is collected by virtue of a special authority, although there already existed the power to collect public taxes. Ord. May 20th, 1850, sec. 37. Rev. Ord., 1850, page 34. 5 Gill 383, Alexander, et al. vs. Mayor & C. C. of Balto. 4 Hill, 76, Sharp vs. Speir. 13 Louisiana Rep., 320, Municipality No. Two, vs. Curell, et al. Besides, the record shows a contract between Steuart and his lessees cotemporaneous with the leases in which Steuart binds himself to pay for the paving to the amount of one dollar per front foot, and if it be true that the liability determines the right to sign the lessor was the only one entitled to sign the application, or the contract would be an ample authority from the lessees when coupled with the fact that they have never objected to his action.

4th. The collector has power to collect by distraint or sale without resort to the courts. His summary remedy against the personal property being rendered ineffectual by the act of the complainant, he has endeavored to collect the tax by the exercise of his power of sale of real property. The privilege of suing on a replevin bond is not a collection [**16]  of a tax. Act of 1840, ch. 63. Ord., May 20, 1850. (Rev. Ord., 1850, page 34,) secs. 7, 37.

5th. The paving tax is a lien from the moment of making the assessment. The withdrawal of the bills only relieves the collector and his sureties of their personal responsibility to the contractor, and cannot discharge the property from the liens. Ord., May 20th, 1850, sec. 37, No. 11. (Rev. Ord., page 25.) 6 Md. 71, Eschbach vs. Pitts.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*194]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the circuit court for Baltimore city, dissolving an injunction. The case may be thus stated: the appellant, at the time of the institution of proceedings, was the owner of a lot of ground on the east side of Hollins street, in the city of Baltimore. That street was paved, and a portion of the expense incurred was assessed against the appellant, who, refusing to pay it, a distress was levied, in the name of the Mayor & City Council of Baltimore, on the property found 

 [*195]  on the premises. The appellant sued out a writ of replevin, and, subsequently, filed [**17]  the bill in this case, to restrain the further proceedings of the appellees to collect the amount alleged to be due by him for the paving in front of his lot. There is no question in regard to the fact of the paving having been done, nor is there any as to the ownership by the appellant of the lot, for the paving in front of which he has been sought to be charged. These facts are conceded. Without stating circumstances which were relied upon in the argument, but which, in our opinion, have nothing to do with the decision of this case, we will advert to the grounds on which rests the equity set up in the bill. They are these: Holland and Cassard, owners of lots binding on the street, did not sign a recommendation to the city commissioner of the city of Baltimore, asking that the street might be paved. Gen. George H. Steuart signed, with others, a recommendation that the street be paved, and signed as the owner of 195 feet fronting on the street, when it is conceded by the admissions of counsel, and established by the proof in the case, that, with the exception of 90 feet, he was not the absolute owner of any of the lots for the paving in front of which he signed; he having leased 105 [**18]  feet of them for terms of 99 years, renewable forever. If he had no right to represent the 105 feet which had been leased, then there was not a majority of the feet fronting on the street recommended to be paved by those who had the right or authority to do so, and, as matter of necessary consequence, the city authorities had no power to direct the paving of the street. It is a matter of mathematical ascertainment how many feet there are binding on a street within a given distance, and, in this case, it is not only shown by the enumeration of the feet of the several lots fronting on the street, but admitted, that if Gen. Steuart had not the right to represent the 105 feet leased for ninety-nine years, there were not a majority of the feet represented by those who alone had the right to do so.
By the act of 1833, chapter 40, section 1, the Mayor and City Council of Baltimore, on the recommendation of the owners of two-thirds of the feet fronting on any street, were empowered to order that it be repaved; and by the 3rd section 

 [*196]  of the same act it is provided, "that a tenant for ninety-nine years, or for ninety-nine years, renewable forever, and the executors or administrators [**19]  of such tenant, shall be deemed and taken as an owner, within the meaning of this act." By the act of 1840, ch. 63, it is enacted, that the Mayor and City Council should have full power and authority to provide, by ordinance or otherwise, for the prompt collection of taxes due the city, and, to that end, to sell real as well as personal property.
It will be perceived, that by the language of the act of 1833, the authority conferred, in words, is only to repave. But, by the ordinance of the Mayor and City Council of Baltimore, of May 20th, 1850, it is provided, that whenever the city commissioner shall receive an application, in writing, for paving to be done in any unpaved street, or any part of such street, from the proprietors of the majority of the feet of ground binding and fronting on such street, or the part thereof to be paved, it shall be the duty of such commissioner, &c., &c.
Although the authority of the corporation to pave an unpaved street, is not derived from the act of 1833, but conferred by those of 1797, ch. 54, and 1817, ch. 148, yet, in the construction of the two earlier acts, that of 1833 ought to be adverted to as being in pari materia; and [**20]  the definition of the word "owner," occurring therein, should be taken as the correct one, as applicable to it, or its synonyme, "proprietor," when either appears in the other acts, in relation to paving.
It was conceded, at the bar, that a majority of the feet must be represented, to give the authority. In this case, if Gen. Steuart had not the authority to speak for 195 feet, as he did, then there was no power in the corporation, or its commissioner, to direct the paving alluded to in the proceedings; and that he had no such authority, is manifest from the language of the act of 1833, which, in express terms, designates the lessee for ninety-nine years, or for ninety-nine years, renewable forever, as the "owner." Gen. Steuart could only act to the extent of the 90 feet, in which he retained an absolute fee-simple.
This being so, the only remaining inquiry is, will equity relieve 

 [*197]  in such a case against an attempt to enforce payment by a sale, where no debt is due? We entertain no doubt on the question. There are several principles recognized in courts of equity which cover the case, among which is, that (where ample and perfect justice can be done) equity will interfere [**21]  to prevent multiplicity of suits; and, again, that equity will not allow a title, otherwise clear, to be clouded by a claim which cannot be enforced either in law or equity. These are principles of universal application. The idea that a party ought to stand by and see his property illegally exposed to public sale, and then force the purchaser to bring his ejectment to gain possession, or to try his title, seems to be sustained by no good authority. Such a doctrine would not only encourage circuity of action and multiplicity of suits, but render the title of the real owner comparatively valueless, while the suits at law should be pending. We have shown that there is not the slightest claim, under the acts of Assembly and ordinances of the city of Baltimore, against the property of the appellant, for the paving done in front of his lot, and it would be strange, indeed, if a court of equity had no right to interpose, in his behalf, to save him from an annoying, protracted and expensive litigation in the courts of law. But such is not the law, and the following (without referring to others) are authorities abundantly clear on the point; McCann vs. Taylor, et al., 10 Md. 418. [**22]  2 Story's Eq., sec. 955. The case of Dolan & Foy, vs. Mayor & C. C. of Balto., 4 Gill 394, recognized, substantially, the jurisdiction of equity in a case similar to the present.
We shall reverse the order of the circuit court, dissolving the injunction, and pass one making it perpetual.
Order reversed, and injunction made perpetual.
In the case of George and Lewis Cassard, vs. The Mayor and City Council of Baltimore, and Charles Howard, Collector, the facts were the same as in the above case, except that there was no distress levied upon personal property, and having 

 [*198]  been argued at the same time, LE GRAND, C. J., delivered the opinion of this court.
For the reasons assigned in the opinion in the case of Holland vs. Mayor and City Council of Baltimore, we reverse the order in this case, and make the injunction perpetual. 

3 of 47 DOCUMENTS 

JOHN SANDERSON vs. JAMES STOCKDALE, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 563; 1857 Md. LEXIS 65 

DECEMBER, 1857, 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.) refusing to grant an injunction and appoint a receiver upon a bill filed by the appellant against the appellees. The allegations of the bill and the purport of the exhibits therewith filed, are fully stated in the opinion of this court.  

DISPOSITION:
The decision below is reversed, and the cause remanded for further proceedings.  

HEADNOTES:

A promise to execute a mortgage to secure a debt, without designating or describing the property to be mortgaged, and not even stating whether it was to be real or personal estate, is too vague and indefinite to be enforced by a court of equity.

Partnership creditors, before judgments obtained, have no lien on the partnership effects for the payment of their debts, but the partners themselves have such lien for the discharge of all the partnership debts, and this lien of the partners may, in many cases, be made available for the benefit of creditors.

Partnership effects may be legally transferred, bona fide, for a valuable consideration, either to one or more of the partners, or to mere strangers, but when the transfers are fraudulent, they cannot impair or injuriously affect the claims of partnership creditors.

Under the 2nd section of the act of 1835, ch. 380, a partnership creditor may, without first obtaining judgment on his claim, proceed in equity to vacate any transfer, assignment or contract between the partners disposing of partnership effects among themselves, for fraudulent purposes.

Under this act, "any creditor or creditors, plaintiff or plaintiffs," may, without first obtaining judgment on his claim, proceed in equity to vacate "any conveyance, or contract, or other act, as fraudulent against creditors."

A bill filed by a partnership creditor, charged that the partnership effects had been misapplied and appropriated to the private purposes of the individual partners, by which the creditors of the firm have been delayed, hindered and defrauded; that the firm is insolvent, and that a dissolution, or pretended dissolution, thereof, and transfer or assignment of the partnership effects were designed, to effectuate the dishonest purpose of defeating creditors, and appropriating such effects to the private purposes of the partners, and that unless they are arrested in the prosecution of this purpose, the complainant will sustain great and irreparable injury. Upon appeal from an order refusing to grant an injunction and appoint a receiver on this bill, HELD:

1st. That as the case now stands, the complainant is entitled to have the assignment considered fraudulent and void, and, therefore, should have an injunction to prevent the partnership effects from being sold or disposed of in any manner prejudicial to his claim, until his rights can be ascertained and settled in the future progress of the case.

2nd. Such injunction should embrace all the effects included in the alleged fraudulent transfer or disposition, and which are to be found in the possession or under the control of either or any of the partners, and also any other effects still belonging to the firm, or which may be in the possession or under the control of either or any of the partners, by virtue of any conveyance, or contract, or any other act, not bona fide.

3rd. But he is not entitled to an injunction to prevent a disposition of the bona fide separate property of the partners, and which is not held or claimed by the individual members of the firm, under any fraudulent transfer of property originally owned by the partnership.

4th. After the cause is remanded, it will be proper for the court below, at any time after reasonable notice to the defendants, or their solicitor, to appoint a receiver of the effects covered by the injunction, provided it shall be shown to the court that such a measure is necessary to the ultimate security of the complainant.  

COUNSEL:
Wm. S. Bryan and Henry Webster for the appellant, argued:

1st. That under the act of 1835, ch. 380, sec. 2, the appellant has a right to proceed in equity to vacate the assignment of the 27th of June 1857, without obtaining a judgment. This law permits a party to proceed in equity "to vacate any conveyance, or contract, or other act, as fraudulent against creditors," without first obtaining a judgment on his claim. It would be a narrow construction of this act to say, it allows a creditor to attack a deed, and not a parol assignment fraudulent and invalid on its face. The words are comprehensive, embracing any "contract or other act," and clearly include just such a case as the present.

2nd. That the bill states a case which would require [**2]  a court of equity to annul this assignment. The assets of an insolvent partnership are, in equity, primarily applicable to the payment of the partnership debts. The attempt, therefore, on the part of the appellees to defeat this equitable right of the partnership creditors by a pretended assignment, is fraudulent. 1 H. & G., 96, McCulloh vs. Dashiell. 2 Md. 1, Glenn vs. Gill. 19 Vermont, 279, Washburn vs. Bank of Bellows Falls. 1 Sandford's Ch. Rep., 348, Jackson vs. Cornell. 4 Barb., 571, 590, 691, Burton vs. Tisdall. 2 Paige, 400, Devean vs. Fowler.

3rd. That a court of equity having acquired jurisdiction of the case, will retain it, for the purpose of doing complete justice. It will, consequently, decree an account of the partnership, and payment of the appellant's claim, primarily out of the partnership effects, and, failing these, out of the private estate of the partners. 2 Johns. Cases, 424, Armstrong vs. Gilchrist. 10 Johns., 587, 595, Rathbone vs. Warren. 2 Hill (S. C.) Ch. Rep., 111, Backler vs. Farrow.

4th. That as there is good reason to apprehend that the partnership effects will be misapplied, through the fraud of the appellees, pending this suit, equity [**3]  will issue an injunction and appoint a receiver. 1st. The general grounds on which injunctions are issued by courts of equity, are well stated in Pennell vs. Roy, 17 Eng. Law & Eq. Rep., 417, and in 2nd Story's Eq., sec. 872. In Thompson vs. Diffenderfer, 1 Md. Ch. Dec., 489, the Chancellor said, where "the facts charged in the bill present an aspect of imminent danger, and contemplated, if not actual, fraud," there was a judicial necessity for an injunction and a receiver. It is held that even a bona fide possessor of property will be displaced, and a receiver appointed, if there is danger from his insolvency, fraud, or misconduct, that he will make a misapplication of it. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 2nd. The case of Uhl vs. Dillon, 10 Md. 500, is not in conflict with the positions here assumed. In that case there was nothing on which to ground the jurisdiction of a court of equity, but here the act of 1835 expressly gives the jurisdiction, because we call upon the court to set aside an executed transaction as fraudulent and void, and the injunction is asked as auxiliary to the principal relief sought. 3rd. In Albert & Wife vs. Winn & Ross, 7 Gill 446, an injunction [**4]  was granted to restrain the fraudulent alienation of property. This was on the ground that whatever equity would undo, it would prevent. In Ellicott vs. Insurance Co., 7 Gill 308, a similar injunction was granted. In the case at bar, as in the two last mentioned, the specific fraud contemplated is pointed out. It is very usual to issue injunctions to prevent the alienation of property pendente lite, when there is reason to apprehend a fraudulent disposition of it, as in the ordinary case, where a bill is filed by a wife against her husband for divorce and alimony. 4 Gill 105, Ricketts vs. Ricketts. 4th. The case stated in the court's opinion, in Kerr vs. Potter, 6 Gill 425, is the present one. See, also, 4 Paige, 574, Bloodgood vs. Clark. 2 Story's Eq., sec. 834.

5th. That as Stockdale's private property is liable to contribute to the payment of the partnership debts in the proportion to be ascertained when the account of the partnership is taken, and as the bill charges that he has in contemplation a fraudulent disposition of it, an injunction should be granted to restrain the alienation of it.

T. Parkin Scott for the appellees, argued:

1st. That the promise [**5]  to give a mortgage, made on the 27th of July 1857, after the sale and delivery of the hogs, was and is without consideration, and void.

2nd. That the promises of Stockdale, made in September 1857, to secure or pay the debt by assigning securities, were conditional and voluntary, and are not binding, and, besides, are too vague, indefinite and uncertain to be enforced by a court of equity.

3rd. That a debtor, in failing circumstances, has a right to give preferences. 9 Gill 231, Powles vs. Dilley. 3 Md. 225, Glenn vs. Grover & McColm. 7 Md. 177, Falconer vs. Clark & Griffith. Act of 1854, ch. 193, sec. 13.

4th. That the complainant has no lien on any part of the property mentioned in the bill, and, therefore, had no right to attack any disposition which the parties may have made of it.

5th. That the refusal of the court below to grant the injunction or appoint a receiver, was correct, is clearly settled by the case of Uhl vs. Dillon, 10 Md. 500, and the case of Glenn vs. Gill 2 Md. 16.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*567]  ECCLESTON, J., delivered the opinion of this court.
This appeal [**6]  is taken, by the complainant, from an order of the circuit court for Baltimore city, refusing to grant an injunction and appoint a receiver.
The bill was filed on the 19th day of September 1857, and alleges, that for some time prior to the 27th of June, and up to the 17th of September, in the same year, the defendants had been doing business as partners, in the city of Baltimore, under the name and firm of Ulery, Stockdale & Co., and, as such, became indebted to the complainant in the sum of 

 [*568]  $ 19,695, for hogs sold to them, for which the defendant, James Stockdale, executed and delivered to the complainant three promissory notes, signed in the partnership name, dated the 14th of July 1857, and amounting, in the aggregate, to the above mentioned sum; which notes have not been paid, two of them being over-due and protested before the filing of the bill, and the third falling due a few days after, which note, Stockdale informed the complainant, would not be paid at maturity. That the hogs have been sold by Stockdale, and he has received the money for them, as he has acknowledged.
The bill also alleges, that he promised to procure an endorser for the three notes, as an additional [**7]  security for their payment, but he has failed and refused to do so; that having failed and refused to comply with that promise, Stockdale promised, in writing, on the 27th of July 1857, to give the complainant notes secured by mortgage, which he has since refused to do. That Ulery, Long and Cope are citizens and residents of the State of Pennsylvania, and out of the reach of the process of the courts of Maryland; that the partnership is unable to meet its just liabilities, and is insolvent; that the notes of the firm have been protested, in the city of Baltimore, for non-payment. The bill also alleges, that the complainant has heard, and believes, that misunderstandings and unfriendly differences have arisen among the members of the partnership, with respect to the partnership property. And the complainant avers, that Stockdale has charged his partners with wrongfully withholding from the partnership property, funds and effects to the amount of forty-five thousand dollars, and carrying the same beyond the limits of this State; that Stockdale has attributed the embarrassed and insolvent condition of the partnership to this conduct of his partners. The bill also states, that on the 17th [**8]  of September 1857, an advertisement appeared in the Baltimore Sun, a newspaper published in that city, containing a notice of the dissolution of the partnership, signed by all the members of the firm, and stating that the partnership was dissolved on the 27th day of June 1857; that Long and Cope had disposed of all their interest in the partnership to Stockdale, who would liquidate the affairs of the late partnership, 

 [*569]  and further stating that Stockdale and Ulery would continue the business, and pay all the debts of the late firm, and collect all that were due the same; which notice is alleged to be the first ever given to the public of the dissolution of the partnership, which had taken place nearly three months before, according to the advertisement, during all which time the business was conducted in the partnership name.
The complainant also avers, he believes that the partnership effects have been misapplied, and appropriated to the private purposes of the individual partners, and that the creditors of the partnership have been thereby delayed, hindered and defrauded, and he charges that the pretended dissolution and assignment above mentioned, is a fraudulent device,  [**9]  designed still further to effectuate the same dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating the partnership effects to the purposes of the individual partners. And it is averred, that unless Stockdale, Ulery, Long and Cope are arrested in prosecuting their said purpose, and prevented from carrying the same into effect, by the interposition of the court of equity, the complainant will sustain great and irreparable damage. And he alleges that he is informed, and believes, that Stockdale owns a large amount of real estate in the city of Baltimore and Baltimore county, and that the partnership of Ulery, Stockdale & Co., own real estate in the said county, but the complainant is unable to describe the same, and is ignorant of its value. He also avers he has good reason to believe, and does believe, that the real estate belonging to Stockdale, and that belonging to the partnership just mentioned, may be conveyed away and disposed of, so as to be beyond the reach of their creditors, both individual and partnership, unless the court should interpose and prevent such disposition and conveyance. And the bill charges that Ulery, Stockdale, Long [**10]  and Cope, have such a design in contemplation.
The prayer of the bill is, that the defendants may be restrained, by an injunction, from carrying away, wasting, misapplying and disposing of the partnership funds and effects of the firm of Ulery, Stockdale & Co., or in any wise intermeddling 

 [*570]  with the same, and that a receiver may be appointed to take charge of them under the direction of the court; that the assignment mentioned to have been given, as stated in the advertisement of the 17th of September, may be declared to be null and void; that an account of the partnership of Ulery, Stockdale & Co., may be taken, and a decree passed for the payment of the complainant's claim out of the said partnership effects and estate, and if they shall be found insufficient to pay the same, that the individual partners may be decreed to pay the balance remaining unpaid out of their separate estate, and that Stockdale may be enjoined and prohibited from alienating, selling and conveying away, or in any wise incumbering his personal and real property in the city of Baltimore and Baltimore county, or elsewhere, if he has any, and that he shall discover whether he has any, and that he shall [**11]  give a description of the same, and a statement of its value, and be decreed to mortgage the same to the complainant, to secure his said debt, or that the same be sold for the payment of the same, or to pay such portion as the said Stockdale may be rightfully chargeable with by the rules of equity and good conscience, or that he may mortgage the same for such portion of the said debt as it may be right he should secure by mortgage; and that the complainant may have such other and further relief as his case may require, and as to right may appertain.
With the bill were filed, as exhibits therein mentioned, copies of the three notes, a copy of the letter alleged to have been written by Stockdale, in which he promised to give a mortgage, and also a copy of the advertisement of the dissolution of partnership.
On the 24th of September 1857, were filed two of said notes, with the protests of them, and the letter from Stockdale, mentioned in the bill, with an affidavit of the complainant, stating those two notes and the letter to be the originals which they purport to be, and that the third note was not then due, but would be due and payable on the 25th of September 1857, and had been deposited [**12]  in bank for collection.
There was also filed an affidavit of Henry Webster, one of 

 [*571]  the complainant's solicitors, dated the 24th of September 1857, stating that on or about the 10th of the same month, the deponent was consulted by the complainant in relation to his claim against the defendants; that subsequently, before the 17th day of the same month, he had several interviews with James Stockdale, one of the defendants, about the same matter; that he said the debt mentioned by the complainant in his bill, and secured by the notes, as therein stated, was bona fide, and should be paid, every dollar of it; that the said partnership was about to be dissolved, and he wanted more time to pay it; that he had settled with his partners, to whom he did not owe a dollar, and that they had just withdrawn forty-five thousand dollars out of the firm, which was the cause of its then embarrassment, and inability to pay its debts. Stockdale further stated, that his partners had become dissatisfied with his management of their business; that they could not agree about it, and that the firm would be dissolved on Friday, the 18th day of September 1857, before which day he wished to arrange [**13]  for an extension of time upon the complainant's claim, by renewing the notes of the firm, and securing their payment by sundry parcels of property and securities belonging to him, Stockdale, which he proposed to transfer to the complainant, for that purpose. The deponent further states, that the complainant offered to extend the time of payment of his claim as proposed, but when the deponent had prepared some of the papers to consummate the arrangement, Stockdale changed his mind, and insisted that if the extended notes should not be met at maturity, the complainant should accept the property offered as security absolutely in payment, and return the notes to him; which the complainant declined to do. The deponent also states, that the notes mentioned in the bill were referred to by Stockdale as having been issued for hogs sold by the complainant to said firm, in the month of July 1857; that the hogs had been sold by the firm to Mr. Smith, the distiller, and were all paid for.
The complainant's claim to relief, upon the ground of a promise by Stockdale to give a mortgage, cannot be sustained. There is no description of any property designed to be mortgaged; 

 [*572]  there being [**14]  not even so much as a statement whether it should be real or personal estate; and a court of equity cannot undertake to enforce a promise so perfectly vague and indefinite. Thus it becomes unnecessary to inquire whether, exclusive of the alleged promise of a mortgage, there are other grounds which entitle the complainant to relief?
The object of the bill is to secure the payment of a claim based upon three promissory notes given in the partnership name, for property sold by the complainant to the firm. It is alleged that the partnership effects have been misapplied, and appropriated to the private purposes of the individual partners, and that the creditors of the firm have been thereby delayed, hindered and defrauded.
The insolvency of the partnership is alleged; and the bill charges that a dissolution, or pretended dissolution, of the part-ship, and transfer or assignment of the partnership effects, were designed to effectuate the dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating those effects to the private purposes of the partners. The complainant also states, that unless the partners are arrested in the prosecution of their said purpose,  [**15]  and prevented from carrying the same into effect, by the interposition of the court, he will sustain great and irreparable damage.
Looking to these allegations in connection with others more fully stated in the bill, there is, in our opinion, good ground for the complainant to claim a reversal of the decision below.
The rights of partnership creditors, with reference to partnership effects, came under consideration in the case of Glenn vs. Gill 2 Md. 1. The court there refer to Reese & Heylin vs. Bradford, 13 Ala. 837, and adopt the doctrine stated in that case in relation to such creditors. It is there said, that, as partnership creditors, they "have no lien on the partnership effects for the payment of their debts, and they stand, in respect to partnership property, as individual creditors do to the property of individual debtors, without having any lien thereon, until their debt is reduced to judgment, which will create a lien on real estate, and when execution is issued thereon, a lien is created on the personalty."

 [*573]  Whilst the creditors have no lien upon the partnership effects, by virtue of their debts, those effects may [**16]  be legally transferred, bona fide, for a valuable consideration, either to one or more of the partners, or to mere strangers. Collyer on Part., sec. 174, (Ed. of 1848.) Story on Part., sec. 358, and the cases cited in the notes. It may, however, be generally stated, "that where the partners, themselves, have a lien upon the partnership effects, for the discharge of all the debts and obligations thereof, (as they have in all cases where they have not parted with it,) that lien may, in many cases, be made available for the benefit of the creditors. But then the equities of the creditors are to be worked out through the medium of that of the partners." Story on Part., sec. 360.
Although the authorities recognize the validity of bona fide transfers of partnership property by the partners, the principle is as clearly established, that when the transfers are fraudulent, they cannot impair or injuriously effect the claims of partnership creditors. Collyer on Part., secs. 573, 902, 903. Story on Part., sec. 163.
Notwithstanding the principles announced in Glenn vs. Gill we do not perceive how the authority of that case will be, in any degree, impaired [**17]  or interfered with, by holding the complainant entitled to relief against a transfer of partnership property between the partners, alleged to have been fraudulently made, for the purpose of defrauding their creditors, the firm, at the time, being insolvent.
If, prior to the act of 1835, ch. 380, sec. 2, it might have been necessary for the complainant to have a judgment upon his claim before he could obtain the relief he seeks, or any portion thereof, such necessity is now dispensed with by that act. It provides: "That in no case of a proceeding in equity to vacate any conveyance, or contract, or other act, as fraudulent against creditors, shall it be necessary for any creditor or creditors, plaintiff or plaintiffs, in the cause, to have obtained a judgment on his demand, in order to the relief sought in the case, either in his or her own behalf, or in behalf of any other creditors who shall claim to participate in the benefit of the decree in the case."

 [*574]  This language is very comprehensive, both in relation to the transactions which may be vacated as fraudulent, and the creditors who may institute proceedings to vacate them without first having obtained judgments [**18]  upon their claims. The transactions are, "any conveyance, or contract, or other act," and those who may proceed to vacate them for fraud, without having judgments, are "any creditor or creditors, plaintiff or plaintiffs." Now, surely, if any creditor or creditors may do so, partnership creditors may. And such language as "any conveyance, or contract, or other act," must be comprehensive enough to include any transfer, assignment or contract between partners disposing of partnership effects among themselves, for fraudulent purposes.
The advertisement of the 17th of September 1857, purports to give notice of a dissolution of the partnership on the 27th of June previous, and the notice being signed by all the members of the old firm, it furnishes evidence that Long and Cope had retired from the firm, and had disposed of all their interest to Stockdale. This notice of dissolution, and the assignment or disposal of partnership effects therein mentioned, the bill charges as being fraudulent, and designed to effectuate the dishonest purpose of defeating the just claims of creditors, and misapplying and appropriating the partnership effects to private purposes. And the insolvency [**19]  of the firm, at the time, is also alleged.
Under the act of 1835, upon the case as now presented, the complainant is entitled to have the assignment or transfer to Stockdale considered, for the present, fraudulent and void, and, therefore, he should have an injunction to prevent the partnership effects from being sold or disposed of, in any manner prejudicial to his claim, until the rights of the parties shall be ascertained and settled by the future proceedings in the cause. And such injunction should embrace all the effects included in the transfer or disposition among the partners, alleged in the bill to be fraudulent, and which are to be found in the possession or under the control of either or any of the partners, as also any other effects or property still belonging to the late firm, or which may be in the possession or under the 

 [*575]  control of either or any of the partners, by virtue of "any conveyance, or contract, or any other act, not bona fide."
 Uhl vs. Dillon, 10 Md. 500, has been relied upon by the appellee's counsel, but that case differs widely from this, and the points of difference are sufficiently manifest to render it unnecessary [**20]  for us to specify them.
The appellant contends that he is not only entitled to relief in relation to partnership effects, but as they may prove insufficient to give him full redress, he has a right to claim that the separate property of the members of the late firm, and especially of Stockdale, should be held liable, in this case, to make up any deficiency in the partnership effects, and, therefore, he contends that the separate, as well as joint property, should be protected, by injunction, for his benefit. But we do not think so. Under the circumstances disclosed in this case, the appellant is not entitled to an injunction in regard to separate property, bona fide such, and which is not held or claimed by the individual members of the firm, under any fraudulent transfer of property originally owned by the partnership. There is no allegation that either of the members of the late firm has fraudulently transferred or disposed of any portion of his separate property.
The views which have been expressed, render it proper that the decision of the court below, made on the 26th of September 1857, overruling the application for an injunction and appointment of a receiver, should be [**21]  reversed, and the cause remanded for further proceedings, so that an injunction may be issued, according to the principles announced in this opinion, that an answer to the bill may be filed, and such other proceedings may be had as may be necessary and proper.
At any time, after reasonable notice to the defendants, or their solicitor, it will be proper for the court below to appoint a receiver, for the purpose of taking charge of the effects which may be covered by the injunction, provided it shall be shown to the court to be necessary for the ultimate security of the complainant, in case his claim upon those effects shall be finally established.
The costs are to await the final result.
The decision below is reversed, and the cause remanded for further proceedings. 

4 of 47 DOCUMENTS 

GEORGE U. GRAFF vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 544; 1857 Md. LEXIS 19 

JUNE, 1857, Decided 

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

By the act of 1853, ch. 376, entitled, "An act for supplying the city of Baltimore with pure water," power is given to the Mayor and City Council of Baltimore to "agree with the owner or owners of any land, real estate, spring, brook, water or water-course, earth, timber, stone or other materials, which the said Mayor and City Council of Baltimore may conceive expedient or necessary to purchase and hold, for the purpose of introducing water into the said city," and if they cannot so agree, provision is made for summoning a jury "to inquire into, assess and ascertain the sum or sums of money to be paid by the said Mayor and City Council of Baltimore, for the land, spring, brook, water-rights, or other property, which they may deem necessary to purchase and hold, or use for the purpose;" such jury, to be sworn justly and impartially, to value the damages which the owner will sustain, by such use and occupation of his property, to reduce their inquisition to writing, and sign and seal the same, which shall then be returned to the clerk of the circuit court for the county where the land is situated, and filed in his office; "and shall [**2]  be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and when confirmed shall be recorded; and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same, valued to the Mayor and City Council of Baltimore, and such valuation, when paid or tendered to the owner or owners of said property, or his, her or their legal representatives, shall entitle the said Mayor and City Council of Baltimore, to the use, estate and interest in the same, thus valued, as fully as if it had been conveyed by the owner or owners of the same." The act then provides, that the city authorities shall have power to issue certificates of debt, to the limit of $ 2,000,000, to defray the expenses of this improvement.

Under this law an ordinance was passed by the city authorities, in July 1856, adopting a plan for the introduction of water into the city, by the way of Stony Run. A portion of the land embraced in this plan, belonged to Graff the appellant, and was situated in Baltimore county; notice was given to him by the proper agent of the city, to stop the improvements thereon,  [**3]  which he was engaged in making, and that the city would forthwith take the proper steps to summon a jury to value the property, and would object to the valuation of any work or improvements he might thereafter put thereon. A jury was then summoned under the law, made an inquisition, assessing the damages to the appellant at $ 30,000, which was duly returned to the clerk of the circuit court for Baltimore county. This court passed an order confirming the inquisition nisi, after which the city passed an ordinance repealing the previous ordinance adopting this plan, and directing their counsellor to resist the confirmation of any and all inquisitions which have been had thereunder, who thereupon showed cause against the confirmation of the present inquisition, alleging that Graff had no right to demand confirmation thereof, and that the city does not desire to have it confirmed, and has made no application for that purpose, but, on the contrary, has abandoned all design and intention to use and occupy the land, and has disclaimed all right, title and demand thereto. But the court, (PRICE, J.,) after full argument on both sides, ordered the inquisition to be ratified and confirmed.

Graff [**4]  then demanded from the city authorities, payment of the sum awarded to him by this inquisition, which being refused, he then filed his petition in the superior court of Baltimore city, setting forth the above proceedings, alleging that he had thereby been put to great expense for counsel-fees and other necessary charges, and was and is greatly disturbed and injured in his possession and enjoyment of the said land and charging that, by this inquisition, and confirmation thereof, it was conclusively adjudged that the said sum of $ 30,000 should be paid to the petitioner for his said property, by the Mayor and City Council of Baltimore; and praying for a mandamus, commanding the said Mayor and City Council, forth with to provide or procure funds in manner according to law, for payment of this claim. The city authorities answered this petition, admitting the proceedings under the inquisition, but insisted, that by the act of 1853, ch. 376, power was given to the court to confirm it, only at the instance and upon motion of the respondents, whereas it was confirmed at the instance of Graff, and against the remonstrances of respondents, and the confirmation was, therefore, without power in [**5]  the court, and a mere nullity. The answer then avers, that Graff has not been disturbed in the possession of his land, nor has he at any time offered to deliver possession of the same to respondents, nor does he intend, as they have heard, so to do, even on payment of the $ 30,000, but on the contrary intends to continue his possession, and to maintain the same upon the plea, that as the respondents have abandoned the scheme of using his property to convey water to the city, they have lost their power and capacity to acquire and hold the same; that before the confirmation of this inquisition, respondents, upon considerations of public interest and convenience, abandoned, as it was their duty to do, the expensive and inexpedient plan of conveying water to the city by the way of Stony Run, and disclaimed all intention of taking, using or condemning any land on said run, as appears by the ordinance passed for that purpose; that, upon the facts set forth in the petition, Graff has a remedy, if he has any rights, whatever, better adapted to the circumstances of his case, in a court of equity, than the one he is now seeking by mandamus; and that the court, has no jurisdiction to issue the [**6]  same.

The court, (LEE, J.,) passed an order discharging the rule which had been previously laid, and dismissing the petition, from which Graff appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

An act of Assembly for supplying the city of Baltimore with pure water, authorised, in order to the condemnation of land for that purpose, a jury to be summoned and sworn, "to inquire into, assess and ascertain the sum or sums of money to be paid by" the city authorities, for the property "which they may deem necessary to purchase and hold or use for the purpose," whose inquisition shall be returned to the clerk of the circuit court of the county where the property is situated, and "shall be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same valued to the" city, "and such valuation when paid or tendered to the owner or owners of" the property, "shall entitle" the city "to the use, estate and interest in the same thus valued as fully as if it had been conveyed by the owner or owners." Under this act an inquisition was taken and duly confirmed by the proper court, valuing the damages to the appellant, for the taking and use of his property at $ 30,000, but the city before payment or tender of this sum, abandoned the design to use the property, and refused to pay the amount so awarded, and upon appeal from an order refusing a mandamus to compel such payment, HELD,

1st. That the judgment of confirmation decides the value of the land, from which there is no appeal directly to the appellate court, and consequently its propriety cannot be inquired into in this collateral way.

2nd. That the city is not bound by the mere inquisition and judgment of confirmation thereon, and could rightfully abandon the location in question; payment or tender of the valuation is necessary to give the city title to the property.

3rd. That the city may be made liable, in another form of proceeding, to the appellant, for any loss or damage he may have sustained by reason of the conduct of its authorities in the premises.  

COUNSEL:
A. W. Machen and Wm. Schley, for the appellant.

The act of 1853, ch. 376, gives a power, without limit or restriction as to necessity, to the city authorities to purchase and condemn lands for the purpose of introducing water into the city of Baltimore; in case of disagreement a jury is to ascertain the damages to be paid by the city; their inquisition, the act says, shall be confirmed, unless sufficient cause to the contrary be shown. When, therefore, the land is condemned, the inquisition made, returned, and confirmed, it is a taking of the property by the city for its use; the land is then taken in the sense of this act for public use, and the obligation to pay becomes fixed, whether it be actually used for the specified purpose or not. The finding of the jury in their inquisition, which must describe the property taken and its confirmation by the court, is a conclusive and binding act. We therefore, upon all the proceedings in this case, insist:

1st. That the inquisition, confirmed as it has [**7]  been by the circuit court, is a final adjudication, and conclusively establishes the appellant's right to the sum thereby ascertained and awarded. (1 Md. Rep., 567, Hamilton vs. Annapolis & Elk Ridge Rail Road Co., and the same case in 1 Md. Ch. Dec., 109; 8 G. & J., 443, Wil. & Susq. Rail Road Co., vs. Condon; 8 Md. Rep., 7, Lammott vs. Maulsby; 2 H. & G., 50, Raborg vs. Hammond; 22 Pick. 263, Harrington vs. Commissioners of Berkshire; 21 Do., 260, Carpenter vs. Commissioners of Bristol; 4 Barb., 64, People vs. Supervisors of Westchester; 2 Greenlf's Rep., 179, Westbrook vs. North; 4 New Hamp., 517, Hampton vs. Coffin; 5 Adol. & Ellis, 814, King vs. Thames & Isis. Nav. Co.; 3 Mylne & Craig, 440, Salmon vs. Randall; 9 Excheq. Rep., 402, In Re Ware; 6 Gill, 391, Methodist Church vs. Mayor & C. C. of Balto.; 8 Do., 443, Richardson vs. Mayor & C. C. of Balto.; 10 Pet., 449, Voorhees vs. Bank of U. S.; 4 How., 404, Stimpson vs. Westchester Rail Road Co.;) and it is right it should be so, for it seems the appellant's claim to damages (and some damages he certainly has sustained,) is merged in this statutory remedy, and it would be unrighteous if the city, after bringing him before a jury,  [**8]  and taking the chance for a verdict more beneficial to itself, and then keeping him in suspense and fast bound up to the last moment, should have power to nullify a judgment of its own seeking. 3 Metcalf., 381, Dodge vs. Commissioners of Essex. 2 Eng. Railway Cases, 1, Queen vs. North Midland Railway. 19 Barb., 263, Turrell vs. Norman. 15 Eng. Law & Eq. Rep., 368, Hawkes vs. Eastern Counties Railway Co., and the same case in the House of Lords, 35 Eng. Law & Eq. Rep., 19, 22, 28.

2nd. That the city's abandonment of the property can have no effect upon the present question, because: 1st, it took place while the inquisition was pending in the circuit court and that tribunal has finally adjudicated upon its operation; the point is not now open; 2nd, in the case of an inquisition regularly confirmed, though the city may relinquish the right to use the condemned property, it cannot open the settled question of damages, or deny the obligation of the judgment in so far as it works against itself. If the city changed its plan it was not the appellant's fault, and the consequences cannot be thrown upon him. The inquisition was a valid contract between the parties, and the city had no right [**9]  to recede; the law requires that it shall be confirmed unless sufficient cause be shown, and it was the imperative duty of the court to confirm it. 73 Eng. C. L. Rep., 755, Macdougall vs. Patterson. And upon this point in addition to the cases already cited, see 2 Gill, 20, Balto. & Susq. Rail Road Co. vs. Compton. 11 G. & J., 404, Ches. & Ohio Canal Co. vs. Grove.

3rd. The city having once set in motion the machinery provided by the act of Assembly, and formally declared its purpose of taking the land, could not evade the obligation of compensation, but may be compelled by mandamus to proceed. 4 Barn. & Adol., 327, King vs. Hungerford Market Co. Ibid, 333, King vs. Commissioners of Market Manchester, note. 6 Hare, 594, Walker vs. Eastern Counties Railway Co. 4 Eng. Railway Cases, 615, Tawney vs. Lynn & Ely Railway. 1 Do., 400, Stone vs. Commercial Railway. 69 Eng. C. L. Rep., 1043, Queen vs. South Devon Railway Co. A fortiori, is it not competent to the city to refuse payment after the claim to damages has passed into judgment. Notwithstanding its character as a municipal corporation, the city of Baltimore stands just like any private corporation, when, in the exercise of a statutory [**10]  power, it is appropriating to the use of its citizens, lands lying outside of its corporate jurisdiction. 3 Hill, 538, Bailey vs. Mayor &c. of New York.

H. R. Dulany and G. L. Dulany, for the appellees.

Each case like the present must depend upon the construction of the particular act of Assembly, giving the power. The mode of taking land in England for public use is entirely different from that which prevails with us, and hence the English authorities cited by the counsel for the appellant are wholly inapplicable to the present case. The American cases, cited by them, only establish the principle, which we admit, and which is conclusive of this case, that when the title to the land is vested in the public, then the right of the owner to his damages becomes vested, and not till then. The inquisition in this case, and its confirmation, do not constitute a judgment to pay, but is simply a condemnation of the land for future use, an assessment of damages for future loss, and future injuries. The constitution of our State entitles a party to compensation whenever his land is taken for public use; it is the taking of his land which gives him the right to compensation; whenever [**11]  the title is fixed in the public, the correlative right of the owner to damages is fixed. Now when, under this law, was the title to this land to become vested in the city? The answer is plain from the language of the act: "such valuation," (fixed by the inquisition and its confirmation) "when paid or tendered to the owner," shall "entitle" the city to the use of the land, as fully as if conveyed by the owner. Actual payment or tender of the valuation fixed by the inquisition must precede the vesting of the title in the city, and until then the title is in the owner. In the case of Susq. Rail Road Co. vs. Nesbit, 10 How., 395, in construing an act of Assembly similar to this, the Supreme Court decide this very question. See also, 7 Md. Rep., 516, Steuart vs. Mayor & C. C. of Balto. We insist then:

1st. That the question, whether the corporation of Baltimore is liable or not, depends upon the true construction of the act of 1853, ch. 376, on the general principle, that whenever a special power is conferred by law, all questions which arise concerning the extent or the obligations to be incurred in the exercise of such power, must be determined by reference to the provisions of [**12]  the law from which it emanates.

2nd. That this law, inasmuch as it clothes with authority a great public corporation for the purpose of enabling it to accomplish an object highly beneficial to the whole community, should be most liberally construed, and that the presumption of law is strongly against the supposition, that the power thus vested will be perverted for purposes of oppression. 21 Conn., 306, Bradley vs. New York & New Haven Rail Road Co.

3rd. That, according to the proper interpretation of the act in question, a locus poenitentiae remains to the city, until money, awarded by the jury, is actually paid or tendered to the owner of the property which it may desire to take.

Note. The argument upon the question, whether mandamus is the proper remedy in such a case, is omitted, as the decision is adverse to the appellant on the question of right.  

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

OPINIONBY:
TUCK 

OPINION:

 [*551]  TUCK, J., delivered the opinion of this court.
This record presents two propositions for our consideration: the right of the appellant to the money claimed, and the propriety of the remedy employed.
Upon the  [**13]  first we agree with the appellee's counsel, that the case of the Balto. & Susq. Rail Road Company vs. Nesbit, 10 Howard 395, is decisive of the present appeal, if we are 

 [*552]  to recognize that decision as authority. The charter of that company, (1827, ch. 72,) as far as concerns the present inquiry, is substantially the same with the act under which the claim of the appellant is now made. Why different constructions should be placed upon them we do not perceive. If the title to the land condemned under the first of these laws did not vest in the company, because the valuation had not been paid or tendered, it follows, that such payment or tender was necessary to give title to the city of Baltimore in the property of the appellant. The court say: "It can hardly be questioned that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce [**14]  the company into its adoption. This being the case there could, up to this point, be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute." And, in another part of the opinion these terms are called "conditions indispensable to the vesting of a title in the company."
Now, if the title does not vest in the city until payment or tender, and the owner could compel payment by legal process, there would be no mutuality. The city might be required to pay for land that it may never use or need for the purposes of the act. This certainly would be a hardship on the citizens of Baltimore, from which, we think, they should be relieved by adopting the interpretation of the Supreme Court in the case cited.
This may be a severe system of legislation, as was said, because it places the property owner at the discretion, not to say caprice, of the other party, by allowing it to condemn and afterwards abandon the property. But this construction is not likely to work so much injustice as that contended for by the appellant, because, by the latter, the city is deprived of all choice [**15]  of another location, after a condemnation is once made 

 [*553]  and affirmed, no matter how great the necessity might be afterwards for adopting another, even if the owner of the land condemned had not sustained any damage by the act of the city in making the condemnation. These inquisitions, too, often tax the corporation beyond the value of the land, or the damages sustained, and the only relief it has against such wrong is to decline taking the land; of this the owner cannot complain. In cases, however, where the owner has suffered loss by the acts or delay of the corporation, redress might be had in another way.  3 Bland 386. And this is an advantage which he has over the other party. If the property be used and occupied without payment or tender, the case would stand on a different principle, independent altogether of the valuation, as the basis of recovery, for although the State may authorize the condemnation of private property for public use and convenience, those who are clothed with the power are not to exercise it capriciously, or so as to inflict wrong on the citizen who may be called on to submit to this high power.  Moale vs. City of Balto., 5 Md. 314. [**16]  
The inquisition allows the owner such "damages as he will sustain by the taking, use and occupation" of the premises, and this is in pursuance of the oath which the law requires to be administered to the jury. The clause, authorizing the condemnation, implies, that the city should have an election to take or reject the property, after the condemnation, in requiring the jury to ascertain and assess the sum or sums of money to be paid by the Mayor and City Council, &c., "for the land, spring, brook, or water-right, or other property which they may deem necessary to purchase and hold, or use for the purpose."
This means, necessarily, a purchase after the inquisition, by payment or tender of the valuation of the jury, because a previous agreement with the owner, would render the functions of a jury altogether unnecessary, and involves the power to reject the location altogether. The entry for purposes of condemnation is not a taking, use and occupation, within the meaning of the act, and, as we have seen, does not devest the owner's title, or confer it on the city. The act of Assembly has not made the inquisition and confirmation obligatory on 

 [*554]  the city, further than this,  [**17]  that they ascertain the damages to be paid. If there be injustice in this, as alleged in the present case, the fault is in the law, and not to be imputed to those who administer it.
Our conclusions are: 1st, that the judgment of confirmation decides the value of the land, from which there is no appeal directly to this court; and, consequently, its propriety cannot be inquired into in this collateral way. 2nd, that the city is not bound by the mere inquisition and judgment thereon, and could rightfully abandon the location in question; and 3rd, that the city may be made liable, in another form of proceeding, to the appellant for any loss or damage he may have sustained by reason of the conduct of its authorities in the premises.
For as much as the appellant has no right to the amount in dispute, on the basis of the inquisition, we need not consider the questions propounded as to the remedy.
Order affirmed. 

5 of 47 DOCUMENTS 

DANIEL MCCOY, Garn. of SILAS H. DEWEY, vs. EDWARD BOYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 391; 1857 Md. LEXIS 3 

JUNE, 1857, Decided 

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

Attachment on warrant, issued at the instance of the appellee, to affect the goods, chattels and credits of Dewey. The warrant, dated the 23rd of September 1853, is addressed "To the clerk of Baltimore county court;" and "Mr. Norwood" is directed to issue the writ. The affidavit of the plaintiff is dated the same day, and states, that "Edward Boyle, a resident of the United States," personally appeared, &c. The writ, dated the 22nd of September 1853, recites, that the justice "hath this day issued his warrant to clerk of the court of Common Pleas," &c., and was, as appears by the sheriff's return, "laid in the hands of" McCoy and others, "in the presence of" two witnesses, on the 23rd of September 1853, and the short note returned "non est, copy set up." McCoy failed to appear, and judgment of condemnation was entered against him, after a judgment nisi at the previous term. The plaintiff having given the requisite bond, issued a fi. fa. on this judgment. McCoy then appeared and moved to strike out the judgment and quash the attachment; because, 1st, the judgment was improvidently entered and was a surprise upon him; 2nd, the affidavit upon [**2]  which the attachment was awarded is defective in not averring the plaintiff to be a resident of one of the United States, as required by the attachment laws. This motion the court (MARSHALL, J.) overruled, and the garnishee appealed, both from the judgment of condemnation and from that overruling his motion to quash.

In the appellate court, the appellee moved for a writ of diminution to correct the date of the attachment from the 22nd to the 23rd of September 1853. The writ was granted, and under it a motion was made in the court below to make this correction, which the judge ordered to be done, it being, in his judgment, manifestly a clerical error, and the diminution record, showing the amendment, was then sent up.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A writ of attachment was dated the 22nd of September, but professed to be founded on a warrant dated the 23rd of September, and was, in fact, issued on the latter day: HELD, that the date of the writ was manifestly a clerical error, and it was not only competent to but the duty of the court, to order it to be amended.

Since the act of 1834, ch. 79, sec. 1, the total omission in the affidavit of the plaintiff, in an attachment case, of the averment of his citizenship, is not fatal, and the averment that he is "a resident of the United States," is clearly sufficient.

A sheriff's return to a writ of attachment, "laid in the hands of" the garnishee "in the presence of" two witnesses, is sufficient, though it does not certify that the sheriff "made known" to the garnishee to appear and show cause why condemnation should not be had.

The warrant for an attachment was addressed "To the clerk of Baltimore county court," and "Mr. Norwood," the clerk of the court of Common Pleas was, by it, directed to issue the writ. There was no such court as Baltimore county court, but there was the court of Common Pleas: HELD.

That the prefix of the words, "clerk of Baltimore county court" in the address of the warrant, is mere surplussage and of no effect.  

COUNSEL:
J. J. Snyder and Jas. Malcolm for the appellant, argued:

1st. That the court below erred in its order, directing the date of the writ of attachment to be amended. There is nothing in the record or in the docket entries to warrant such an amendment, and where can the court find authority to correct the process without having any thing to correct by? If the record is to stand as it originally stood, the attachment clearly issued improperly,  [**3]  because the affidavit was not made until the day after the writ issued. Act of 1795, ch. 56, sec. 1.

2nd. That the affidavit upon which the attachment was issued is defective, in not averring that the plaintiff was a resident of one of the United States, and this is a fatal defect. 6 G. & J., 335, Wever vs. Baltzell. 10 Do., 274, Baldwin vs. Neale. 1 Gill, 372, Boarman vs. Israel. Act of 1834, ch. 79, sec. 1.

3rd. That the plaintiff is not entitled to condemnation of the funds, if there were any, in the hands of the garnishee, until service of interrogatories upon the garnishee and failure to answer, or proof that funds are in his hands. Acts of 1715, ch. 40, sec. 4, and 1795, ch. 56, sec. 5. The sheriff's return does not show that he warned the garnishee to appear, and is not in the form given in the books. 2 Ev. Harris, 503. The garnishee must be warned into court, and when so warned interrogatories must be exhibited to him, if the plaintiff cannot prove the indebtedness, and upon failure of the garnishee to answer, and then only, is the plaintiff entitled to judgment of condemnation. This return fails to show that this warning was ever given, and the judgment of condemnation [**4]  was, therefore, improperly entered.

4th. That the warrant being directed to the clerk of Baltimore county court, if it authorised any one, did not authorise any other person than the clerk of that court to issue the writ of attachment. The official character of the party who issued the writ must appear, the proceedings in attachment being always stricti juris. 4 H. & J., 192, Prentiss vs. Gray.

T. Yates Walsh for the appellee, argued:

1st. That the date of the writ is manifestly a clerical error, and was properly corrected by the court below. The writ refers to the warrant of the justice as the authority for issuing it, and the warrant bears date the 23rd of September. It was, therefore, in fact, issued on the same day with the warrant, and this is manifest from the face of the record.

2nd. That since the act of 1834, ch. 79, sec 1, the averment in the affidavit, that the plaintiff "is a resident of the United States, is sufficient." 1 Gill, 172, Boarman vs. Israel. But apart from this act, the learned counsel on the other side have been led into error by the mistake in the marginal note to the case of Baldwin vs. Neale, 10 G. & J., 274. Since the passage of the [**5]  act of 1825, ch. 114, no one has ever doubted that such an averment is sufficient.

3rd. The position assumed by the appellant's third point, is, an attempt to overrule a practice which has existed, at least, for a century, viz: that a judgment nisi at the first term, becomes, for all purposes, a final judgment at the second term. Hinkley on Attachments, 87. The suggestion, that the plaintiff was bound to serve interrogatories upon the garnishee, is certainly a novelty. The objection, that there was no evidence before the court to establish the fact that there were effects of the defendant in the hands of the garnishee, cannot, since the act of 1825, ch. 117, be raised here. The return of the sheriff is in the usual form and in compliance with the law.

4th. The last objection, that Mr. Norwood's proper official title was not given in the warrant, cannot be important. He was directed to issue the writ, and was the Clerk of the court of Common Pleas. There was no such court then in existence as Baltimore county court.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*395]  LE GRAND, C. J., delivered the opinion of this court.
This [**6]  was an attachment on warrant, issued out of the Court of Common Pleas of Baltimore city, at the suit of the appellee, against the goods, chattels, credits, &c., of Silas H. Dewey, upon a promissory note for three hundred and twenty-five dollars, due upon the 5th of August 1853. The affidavit of the plaintiff is dated the 23rd of September 1853, and the warrant of the magistrate, directed to the clerk of Baltimore county court, is dated as of the same day. The attachment bears date the 22nd day of September, a day anterior to the date of the warrant. It was laid in the hands of several persons, among the rest, in those of McCoy; he not appearing, a judgment was had against him by default. After giving the necessary bond, the appellee sued out a writ of fieri facias. The appellant, McCoy, then appeared and moved to strike out the judgment and quash the writ of attachment. This motion the court overruled, from which ruling, as well as from the order of the court, directing the amending of the date of the writ of attachment from the 22nd to the 23rd of September, this appeal is taken.
We concur in the ruling of the court below. The date of the writ was manifestly a clerical error. [**7]  It professes to be founded on the warrant of the justice, and was so in fact issued. This fact was apparent on the records of the court, and it was not only competent to but the duty of the court, to order the amendment of the date of the writ.
In support of the motion to strike out the judgment, and to quash the writ of attachment, it was insisted on behalf of the appellant, first, that the affidavit of the appellee did not show that the plaintiff was a citizen of one of the United States, and second, that the return of the sheriff did not, in words, show, that the garnishee had been summoned.

 [*396]  We think both of these objections are answered by the decision in the case of Boarman vs. Israel & Patterson, Ex'rs, 1 Gill 372. At page 381 of the report of that case, the court, referring to the absence of the averment of the citizenship of one of the plaintiffs, say, that although the point had not been made below, yet, nevertheless, notwithstanding the act of 1825, chapter 117, it is a fit subject of review in this court. They then proceed to show, that although under previous legislation such omission would be fatal, yet, such is not the case [**8]  since the passage of the act of 1834, ch. 79, sec. 1. They say, "by this act of Assembly, under the circumstances in which this case stands before us, we think the appellant cannot claim a reversal of the judgment, or that the proceedings on which it is founded be quashed, by reason of the omission of the averment of citizenship as to one of the plaintiffs." In that case there was a total omission of averment as to the citizenship of one of the plaintiffs, whilst in the case now before us there is no such omission; so far from it, the averment is distinct, that the plaintiff is "a resident of the United States.
The case of Boarman vs. Israel & Patterson, Exc'rs, was like the one now before us. The judgment rendered in it, as in this, was by default; and the return of the sheriff the same, in words, with the exception of the names of the parties, as the one in this case. The return in both cases, states the writ to have been "laid in the hands," &c., of the garnishee. Although such return is not in strict conformity to the form given in 2 Vol., Evans' Harris, 503, it does not therefore follow it is not sufficient. If the writ was "laid in the hands" of the garnishee, [**9]  it was in fact notifying him of the proceeding and of the clause of scire facias which it contained. We have caused the records of Baltimore county court and of the Superior court, for many years past, to be examined, for the purpose of ascertaining the practice which has prevailed, in regard to returns of sheriffs in attachment suits, and find they have been uniformly the same as in this case. This circumstance, alone, would induce us to pause before we would declare, that all which had heretofore been done was error; but in the case which we have cited from 1 Gill, we think, the 

 [*397]  sufficiency of such a return must be considered, on every correct principle of reasoning, as having been adjudged. The court there say:--"Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by act of Assembly on any tribunal, its power to act, as it has done, must appear upon the face of its proceedings. And when these proceedings are brought up for review in this court, it must appear, from their inspection, that every thing has been done which the law required, as the basis of the authority that has been exercised." The return [**10]  in that case was the same as the one in this; the court there, on the inspection of the record, discovered no defect in it; nor do we in the one in the present instance.
The other objection, founded on the form of the address of the warrant of the justice, we deem of no importance. It is headed, to the "clerk of Baltimore county court," and then "Mr. Norwood" is directed to issue the writ. At the time of the issue of the attachment there was no such court as "Baltimore county court;" but there was one of "Common Pleas for Baltimore city," of which Mr. Norwood was clerk, as is shown by the record. We regard the prefix of the words "clerk of Baltimore county court," as mere surplussage and of no effect.
Judgment affirmed. 

6 of 47 DOCUMENTS 

RICHARD H. ATWELL and WM. S. APPLETON, vs. J. MADISON MILLER, by procein ami.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 348; 1857 Md. LEXIS 43 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellee against the appellants, to recover the sum of $ 527.29, with interest, for money paid, in advance, by the plaintiff to the defendants, for freight on goods, contracted to be carried by the defendants from Baltimore to Monrovia, in Liberia. Plea, non-assumpsit. The facts of the case are fully stated in the opinion of this court. By an agreement of counsel, it was admitted, that an insurance was effected by the plaintiff on the cargo shipped by him in the defendants' vessel, at a valuation of $ 7500, the value of the goods, as per manifest, being $ 6195.09.

1st Exception. It was proved by the witness, Miller, that Asbury Johns, the consignee named in the bill of lading, was a colored man; that plaintiff, some three or four years ago, sent goods to Liberia by Johns, and they were jointly interested in the profits and losses; that these transaction continued, and they made some $ 3000, which was a part of their capital in the adventure in question; that Johns was here when these goods were bought, and aided in making the selection of them, and went out in the "Harp" with them; that Johns had nothing [**2]  to do with the goods on this side; the goods were bought with the plaintiff's money; the business was done in the plaintiff's name here, and in Johns' name at Monrovia. Witness has known Johns for some six or eleven years; he was a porter in witness' store until he went to Liberia, in the latter part of 1851; he has been in Baltimore since; he received his own wages, and acted as a free man; but witness does not know whether he was born free or not, or whether he had been manumitted. The defendants then proved by their witness, Smith, that he frequently saw Johns about defendants' counting room, whilst these goods were going on board the Harp, and that he was attending to their shipment. The defendants' counsel then asked said witness this question: "Did you hear any conversation at or about the time of the shipment, between said Johns and the defendants, or either of them, in relation to the terms on which these goods were to be shipped? and if so, state such conversation fully, and what was said by said Johns." To the asking and answering of this question, the plaintiff objected, which objection the court (PRESSTMAN, J.) sustained, and refused to allow the question to be asked, and [**3]  to this ruling the defendants excepted.

2nd Exception. The plaintiff then proved, by certain insurance officers, that it is sometimes customary, in Baltimore, for insurers to add 10, and sometimes 50, per cent. to the cost of goods, and that such addition is made to cover the expense of putting the goods on board of the vessel. On cross-examination, these witnesses stated, that if freight was paid in advance, and the shipper took the risk of the voyage, the 10 per cent. would cover such freight. The plaintiff then asked the following instructions to the jury:

1st. If the jury find, from the evidence, that the plaintiff shipped the goods, mentioned in the bill of lading, on the brig Harp, from Baltimore to Monrovia, in Liberia, and paid the defendants the freight therefor, in advance, and that the brig sailed on her voyage with the goods on board, and that the defendants did not deliver them at the port of Monrovia, according to the tenor of the bill of lading, and that this failure so to deliver them, arose from no event imputable to the plaintiff, then they may find for the plaintiff, unless they further find that there was a special agreement, at the time of such shipment,  [**4]  between the plaintiff and defendants, that the freight so paid in advance should, in any event, be retained by the defendants.

2nd. That even if they shall find, from the evidence, that the plaintiff insured said freight, such fact is not evidence from which they may infer that the plaintiff paid the freight at his own risk, or the existence of an agreement between plaintiff and defendants, that the freight was, in any event, to be retained by the latter.

3rd. If the jury find, from the evidence, that plaintiff shipped, on board the Harp, the goods mentioned in the bill of lading, and that by said bill of lading it was agreed, that defendants should transport these goods on said brig from Baltimore to Monrovia, and deliver them to the consignee thereof, in consideration of plaintiff's paying freight therefor, and that there was no stipulation in said bill of lading, that the freight should be at the risk of the plaintiff, or be, in any event, retained by the defendants, and that the freight so agreed to be paid in the bill of lading, was paid by the plaintiff in advance, and that the goods were taken on board said brig for transportation, according to the tenor of said bill [**5]  of lading, and were never delivered by defendants at Monrovia, according to said bill of lading, and that said failure arose from no default of the plaintiff, then they may find for the plaintiff, notwithstanding they may find that defendants refused to take the risk of said freight, or to carry said goods, unless the plaintiff would take said risk, provided they find that said refusal was made by defendants after the making of said bill of lading, and after the goods had been received on board said brig by defendants, for transportation, according to said bill of lading.

The defendants then asked instructions, as follows:

1st. If the jury find, from the evidence, that up to the time of the payment of the money sued for by the plaintiff, the defendants refused to take any risk connected with the freight, and take the goods offered by the plaintiff as cargo, unless the plaintiff would pay in advance for the carriage of such cargo, and take the risk of the voyage being accomplished, and that the plaintiff paid the money so sued for with a knowledge of such refusal, then the plaintiff is not entitled to recover.

2nd. That if the jury find that, in fact, the plaintiff insured [**6]  the freight paid by him to the defendants, such insurance is evidence from which, taken in connection with the testimony of the witness, Smith, if such testimony is believed by them, the jury are at liberty to infer that there was an agreement between the plaintiff and defendants, that the freight so paid by the former should be at his risk, and should not, in the event of the loss of the brig, by perils of the sea, without delivering her cargo, in pursuance of the bill of lading, be recovered back from the defendants.

The court granted the plaintiff's prayers, and rejected 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 order to make the declarations of a third person evidence against a plaintiff, on the ground that he was a partner with, or the agent of, the plaintiff, sufficient proof must first be offered to satisfy the court of the existence of the partnership or agency.

Freight is the compensation for the carriage of goods, and if paid in advance, and the goods be not carried, by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary.

The legal operation of the contract contained in a bill of lading, may be modified by adding thereto a parol suppletory agreement that the freight was to be at the risk of the shipper, and such special agreement may be established by parol proof.

A party having no interest in freight, cannot insure it, and the fact that the shipper effected an insurance on freight, is some evidence that the contract in the bill of lading had been modified by a special agreement that the freight should be at the shipper's risk. 

COUNSEL:
Frederick W. Brune and Geo. W. Dobbin for the appellants, argued:

1st. There is evidence that, from the commencement of the shipment, the contract between the defendants and the plaintiff was, that the freight was to be paid in advance, and that the latter was to be at the risk of the voyage. Such a contract is consistent with the bill of lading as well as the other evidence in the cause. 2 Bos. & Pul., 322, Blakey vs. Dixon. 5 Taunt.  [**7]  , 435, Andrew vs. Moorhouse. 4 Maule. & Selw., 38, De Silvale vs. Kendall. 3 Barn. & Adol., 445, Saunders vs. Drew. The fact that he insured the freight is evidence of such a contract, for a party who has no interest in the freight cannot insure it; he has no insurable interest. Parson's Mercantile Law, 419. 4 Barn. & Ald., 582, Manfield vs. Maitland. And, as evidence of such a contract, the defendants were entitled to present to the jury the statements of Johns. They were admissible as part of the res gestae, (6 Md. 338, McDowell vs. Goldsmith; 5 Md. 219, Miller & Mayhew, vs. Williamson; 4 Md. 305, Greenway vs. Turner,) made by a person who was a partner with the plaintiff in this very transaction, and his constituted agent in regard to the shipment of these goods. It would be strange if, in such a case as this, these declarations and statements are to be excluded merely because they were made by a colored person. It does not seem to be a case which comes within the policy of the act of 1717, ch. 13.

2nd. If such a contract was not originally made, it was competent for the parties to substitute it in place of the original contract. There is evidence that the rate of [**8]  freight stipulated in the bill of lading, was, by a valid aregement, reduced, and that it was part of this agreement, that the freight to be paid should be at the risk of the shipper, and should be insured by him. This modification of the original contract, is recognized in the written receipt given when the money was paid, as well as supported by other evidence, and if under this substituted agreement, the vessel proceeded with the goods to the coast of Africa, and there delivered a portion of them to the consignee of the shipper, the plaintiff was not entitled to recover. 5 Md. 121, Coates & Glenn, vs. Sangston. 2 Parson's on Contract, 67.

3rd. If the defendants constantly refused to carry the plaintiff's goods, unless he paid the freight in advance and took the risk of the voyage being accomplished, and if the plaintiff paid the freight with knowledge of such refusal, he was not entitled to recover. 4 Gill 425, Mayor & C. C. of Balto., vs. Lefferman. 5 Gill 248, Morris vs. Mayor & C. C. of Balto.

4th. Even if the goods were put on board and the bill of lading signed, under a misunderstanding between the parties in regard to some of the terms of the contract [**9]  of affreightment, yet, if before the freight money was paid or the vessel sailed, the plaintiff ascertained this mistake, and the defendants refused to take the goods forward without payment of freight in advance, which was in no event to be returned, and the plaintiff after notice of this refusal and understanding on the part of the defendants, obtained a reduction of the freight and then paid the money, and suffered the vessel to go upon the voyage, such payment cannot be recovered back in this action.

Charles Marshall and H. C. Dallam for the appellee.

1st. The conversations of Johns with the defendants were clearly inadmissible:--1st. They could not be admitted, on the ground that Johns and the plaintiff were partners, for the evidence so far from proving that this was a partnership contract, proves exactly the reverse, and is wholly insufficient to establish the relation of partnership, so as to make Johns' declarations admissible. 1 Parsons on Contracts, 146. 2nd. There was no sufficient proof that Johns was free, and capable of forming the contract of partnership in Maryland, and the onus of proving him free was on the defendants, the presumption in this State being [**10]  the other way. 6 G. & J. 141, Burke vs. Negro Joe. 9 Gill 135, Anderson vs. Garrett. 4 H. & J. 243, Walls vs. Helmsley. 3rd. He is proved to be a negro, and his declarations were inadmissible in a suit between white persons. Act of 1717, ch. 13. 3 H. & J. 97, Rusk vs. Sowerwine. The policy of this law extends to the declarations or conversations of negroes as well as to their testimony. The protection of this law should be extended fully to the citizen, because the policy of our laws keeps the black race in such a condition as to make them unfit, in a great measure, to be entrusted with any power over the rights of the superior race. 4th. This testimony was inadmissible, because the defendants could not prove or rely upon a contract different from the one they, by the statement of facts, agreed to by them, had admitted to exist, viz., a contract with the plaintiff alone. 5th. Whatever Johns, or even the plaintiff, may have said concerning the "terms of shipment," at or about the time of shipment, was merged in the written contract set out in the bill of lading, fully and explicitly stating the terms of shipment, and to which alone we can look for those terms which could [**11]  not be proved by parol, while there was a written contract. If the testimony was inadmissible on this ground, it was properly rejected though unobjectionable in other respects. 3 G. & J. 435, Sothoron vs. Weems.

2nd. The plaintiff's first prayer is based upon the principle of law, that "freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary," which is clearly sustained by the authorities. 3 Pick., 20, Griggs vs. Austin. 3 Johns., 335, Watson vs. Duykinck. 1 Pet. Admiralty Rep., 126, Howland vs. Brig Lavinia. 3 Sumner, 66, Pitman vs. Hooper. 1 Camp., 84, Massiter vs. Buller. Smith's Mercantile Law, 299. 5 Sanford, 578, Phelps vs. Williamson. Chitty on Contracts, 661, 662, 663, note 3. Abbott on Shipping, 496, 497, 501. 3 Kent, 286, 287. 6 H. & J. 401, Ferguson vs. Cappeau. If there was any special agreement, that the freight was in any event to be retained by the defendants, it must be found in the bill of lading, and cannot be supplied by parol evidence. A bill of lading, so far as it is [**12]  not a mere receipt but a contract, cannot be modified by parol evidence; the liability of the owner is fixed by it, subject to such exceptions as it contains. Flanders on Shipping, sec. 479. 6 H. & J. 401, Ferguson vs. Cappeau. 4 Ohio, 334, May vs. Babcock. 14 Wend., 26, Creery vs. Holly. 4 Denio., 330, Covill vs. Hill. 1 H. Bl. 359, Mason vs. Lickbarrow. 3 Sandford, 7, Wolfe vs. Myers. 8 Barb., 205, Niles vs. Culver. 17 Mass., 570, Brigham vs. Rogers. 4 Maule. & Selw., 41, De Silvale vs. Kendall. Even a receipt, when it amounts to a contract, is subject strictly to the rule, excluding parol testimony to change or vary it. 12 Pick., 562, Wakefield vs. Stedman. 15 Pick., 437, Curtis vs. Wakefield. 1 Blackf., 191, Adam vs. Beard. Ibid., 353, Tisloe vs. Graeter. 6 Ohio, 246, Stone vs. Vance. 7 G. & J. 415, Franklin, et al., vs. Long. 4 Hill., 104, Goodyear vs. Ogden, et al, 2 Parsons on Contracts, 67. 6 Barb., 458, Egleston vs. Knickerbacker. 9 Barb., 477, Graves vs. Harwood. 34 Maine, 559, O'Brien vs. Gilchrist. It is submitted therefore, that the bill of lading and receipt, according to the tenor and effect of which the money sued for in this case is admitted by the agreement [**13]  of counsel to have been paid, constitute the final written contract between the parties, and that no parol evidence could be used to modify or vary it.

3rd. The defendants rely upon the evidence of Smith of conversations between the agent of the plaintiff and Atwell, as to who should take the risk of the freight, and especially upon the refusal of the defendants (which is supposed to be proved) to take the goods unless the plaintiff would consent to pay the freight at his own risk, as proving the existence of an agreement on the part of the plaintiff, to assume risks which he had not assumed by the terms of his written contract. It is to be noted in the first place, that all the testimony of Smith, as to what was said about the plaintiff's having to take the risk of the freight, and to insure the freight, is perfectly consistent with the terms of the bill of lading, for by these terms, the plaintiff did assume the risk of the goods after they left the vessel's side, and were delivered to the kroomen to be carried to the shore. But these declarations, as well as the refusal of the defendants to take the goods unless the plaintiff would assume the risk of the freight, if made before [**14]  the execution of the bill of lading were certainly merged in it, and if after, they could not vary the contract and add a general exception of all risks to it, especially when there is no proof that the plaintiff assented to vary the written contract in this particular, that was the subject of these declarations. 3 Md. 78, Stewart vs. Redditt. Ibid., 212, Glenn vs. Grover, et al. Moreover the money was actually paid and the receipt given for it on the 12th of June, and still there is no trace of such a modification in the terms in the bill of lading as is contended for by the appellants.

4th. Neither could the jury infer from the fact of insurance of freight by the plaintiff, that he had assumed any risk not mentioned in the bill of lading, because he had no insurable interest against any peril that remained at the risk of the owner by the bill of lading. 1 Hall, 452, Mellen, et al., vs. National Ins. Co. 1 Phillips on Ins., ch. 3, secs. 337, 340. 5 Scott, 640, Yates vs. White. 16 Pick., 289, Clark vs. Ocean Ins. Co. He had an insurable interest in the freight, by reason of the provision, that the defendants were to deliver the goods to the consignee, to be carried on shore,  [**15]  and if the goods had been lost in transitu from the ship to the shore, the defendants would certainly have earned freight; this was a sufficient risk to justify the plaintiff in insuring his interest in the whole freight, Phillips on Ins., 140. But there is no evidence that he insured freight at all; the policies are on cargo only, and did not cover freight, or such an interest in the freight as the plaintiff would have had if he had taken the risk of the freight. It must have been insured eo nomine, or as freight advanced. 1 Phillips on Ins., ch. 5, secs. 415, 482. Smith's Mercantile Law, 331.

If these positions are correct, there was no error in the several rulings of the court below, and the judgment must be affirmed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*357]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought by the appellee to recover of the appellants the sum of $ 527.29, with interest, for money paid, in advance, by the appellee to the appellants, for freight on goods contracted to be carried by the appellants from Baltimore to Monrovia, Liberia. By the agreement of counsel filed [**16]  in the cause, it appears that the goods upon which the freight was paid in advance, were shipped on board the appellants' vessel (the brig "Harp,") according to the tenor and effect of the bill of lading, dated 9th of June 1854, and that the vessel having the goods on board sailed on the 13th of June of the same year; that it was shipwrecked in the Messurado Roads, occasioning thereby, a loss of a part of the goods and damage to the remainder.
The question presented to the court below may be thus stated: first, whether the declarations of a person, he being a negro, can be given in evidence where a white person is interested? second, whether under the circumstances detailed in proof, the plaintiff below was entitled to recover the money which had been paid in advance?
The proof shows, that in the month of May 1854, the appellants, who were the owners of the brig Harp, were loading her for the coast of Africa, and were applied to by the appellee, in regard to the rate of freight by said vessel. To this application reply was made, "that the current rates to Monrovia were $ 2 per barrel, measuring five feet, or in other words 40 cts. per foot cubic." Sometime after this, the appellee [**17]  put on board the Harp a quantity of cargo, measuring in all 13.529 cubic feet, according to the receipt for the same, The bill of lading stated, that this cargo was shipped by the appellee and was to be delivered at Monrovia, (the dangers of the sea excepted,) to one Asbury F. Johns, or assigns, "the shipper paying freight for the said goods at the rate of 40 cts. per cubic foot, with five per cent. primage, and average accustomed;" 

 [*358]  and it was further stipulated that the goods should "be delivered at ship's tackle, vessel paying kroomen's labor taking them to shore, but goods at risk of owners thereof after leaving vessel, boats for landing furnished and controlled by owners of goods." The bill of lading was signed by the captain, on or about the 9th of June 1854. A bill of freight, dated the 8th of June 1854, was presented to the appellee. The amount of this bill was $ 570.95, and was for 13.529 cubic feet of cargo, at 40 cts. per foot, $ 541.10, wharfage hire, $ 5.40, primage $ 27.32, less 30 days' interest $ 2.87. This bill was not paid until the 12th of June, nor until after a deduction of $ 43.66, which is stated in the receipt to be as "per agreement," leaving [**18]  a balance of $ 527.29, the sum sued for and recovered below. At the trial the appellants by their clerk, the witness Smith, proved that, on the 10th of June, the appellee came with his father, (who was acting for him in reference to the shipment,) to the counting-house of appellants, both of whom were present, and that then the appellee objected to the measurement and to the charge for primage, and said, "he ought to be allowed a deduction (in the freight bill) because he had to take the risk of the freight money himself;" that Atwell then said "he would take no risk, it was at the parties own risk; that he would not insure the freight, and that if they, (the appellee and his father,) were not satisfied with the terms he would rather set the goods on the wharf." The same witness further testified, that during the same interview and in the same presence, and before the freight was paid, that "Miller did not ask security for return of freight money in the case the vessel was (were) lost," and that Atwell stated, that "he would not return the freight if the vessel was (were) lost." The witness also testified, that Miller, the father of the appellee, said, that as he had  [**19]  insurance money to pay, he thought the bill unfair. It was in addition stated by the witness, that on the ascertainment of the loss, application was made for the return of the freight money, whereupon Atwell asked Miller, if he did not understand that he, (the appellee,) took the risk, and if he had not insured? to which the appellee, without denying that he had taken the risk, admitted "that he had insured 

 [*359]  and had added 10 per cent., as was customary." It was proven by Daniel Miller, that the deduction of $ 43.66, per agreement from the bill of appellants, was made by the appellant, Appleton, with the witness.
It was then shown that a colored man, of the name of Johns, had been associated in trade with the appellee, he transacting the business in Africa, the shipments being to him; that he selected a portion of the goods which made up this cargo, and was frequently attending to the shipment. The appellants then proposed the following question to the witness, which the court refused to allow to be put:--"Whether he heard any conversation, at or about the time of the shipment, between the said Johns and the appellants, or either of them, in relation to the terms on which [**20]  these goods were to be shipped?" To the refusal of the court to allow the question to be answered, the appellants objected, and this objection constitutes their first exception.
We presume this question was asked on the ground of one or the other of two theories; that is to say, that Johns was a partner of the plaintiff in the particular shipment, the subject of investigation in this case, or that he was the authorised agent of the plaintiff in the transaction, and as such, capable of binding him, in and about the business, by his declarations. There is not sufficient evidence of the existence of a partnership in regard to this affreightment, to justify his declarations being given in evidence to defeat the action, because of nonjoinder of the proper parties, nor is there evidence sufficient to show an agency. Until one of these propositions was first settled to the satisfaction of the court, the testimony was inadmissible. This view relieves us from all necessity of inquiring, whether the color of the party, whose declarations were proposed to be given in evidence, could have a legal bearing on the question in any event? The court properly disallowed the question.
On the conclusion [**21]  of the testimony the appellee asked three, and the appellants two, instructions from the court to the jury. Those asked for by the appellee were granted, and the others refused.

 [*360]  We will state the principles which, in our opinion, govern this case, and then apply them to the prayers severally.
There is some difference between the law as laid down by the English, and as recognised by the courts of this country. We adopt the decisions of our own courts, as more conformable to the principles of common law and of justice. In the case of Griggs, et al., vs. Austin, 3 Pickering, Judge Parker, in delivering the opinion of the court, after referring to the complete review of Chief Justice Kent, in the case of Watson vs. Duykinck, 3 Johns. Rep. 355, proceeds as follows: "It would be but an affectation of learning, to go over the ground which has been so ably pre-occupied in the opinion given in that case, especially as the same ground has been traversed by Mr. Justice Story, in a note in his edition of Abbott on Merchant Ships, &c., which note was avowedly supplied from the opinion of Chief Justice Kent, above cited. I wish for one, since books are [**22]  so prodigiously multiplied, to spare the profession and the public the expense of reiterated citations on points indubitably settled, when both text and comment may be found in almost every book in a lawyer's library. It is sufficient then to say, that by reference to the above cited opinion and the note of Mr. Justice Story, it will be found to be the established law of the maritime countries on the continent of Europe, that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary."
This, then, being the law applicable to cases of freight, where there has been a failure to earn it, by the delivery of the thing shipped, the question arises in this case, was there a special agreement between the parties, modifying the legal operation of the contract contained in the bill of lading? We are of opinion there was testimony in the cause which, if believed by the jury, was sufficient to justify them in finding such an agreement. We refer to the deduction made in the bill for freight, the conversations which [**23]  then took place, and that had between one of the appellants, Atwell, and Miller, 

 [*361]  when he applied for a return of the money, he not only not denying it when told the freight was at his own risk, but, admitting that he had insured it. This evidence tended to establish a contract, suppletory to that set out in the bill of lading. If the jury found the existence of such supplemental contract, the appellants were discharged from the liability sought to be cast upon them in this suit.
That it is competent to the parties to a parol contract, to modify it by adding thereto, is established by the case of Coates & Glenn, vs. Sangston, Garn. of Cunningham, 5 Md. 121, and the authorities there collected. It is also a well settled principle, that one who has no interest in the freight cannot insure it; he has no insurable interest. We did not understand the learned counsel for the appellee, to deny this doctrine; on the contrary, the authorities which he cited fully sustained it. We understood him to contend, that the appellee had no insurable interest, because, under the bill of lading, the freight was at the risk of the owner of the vessel. If it were at the [**24]  risk of the owner of the vessel, then he was clearly right in the view which he urged? but this depends upon a fact, to wit, whether the contract contained in the bill of lading had been modified or not. Whether it was so or not, was to be determined by the proof in the cause, among which was to be considered the policy of insurance, as giving color to the other evidence, going to show that it was agreed and understood between the parties, that the freight was to be at the risk of the shipper.
The second and third prayers on the part of the appellee are clearly erroneous; the second, because it prohibits the jury from finding from the fact of the insurance of the freight, a special agreement outside of the bill of lading. The fact, standing by itself, possibly might not be conclusive of the matter, but, it is certainly a strong circumstance when coupled with the others testified to, going to show an additional agreement. The prayer, by completely ignoring all the other facts in the case, to say the least of it, was well calculated to mislead the jury. It is equivalent to saying, that the insurance 

 [*362]  by the appellee was no evidence whatever. In this view we do not concur.  [**25]  
From what we have said it will appear, that we are of opinion the instructions asked by the appellants should have been granted, and that the first prayer of the appellee should have been refused. It is defective in this: it denies the right of the parties to make another agreement after the making of the bill of lading. We know of no principle of law which warrants such a conclusion.
Judgment reversed, and procedendo awarded. 

7 of 47 DOCUMENTS 

NEW ENGLAND CAR SPRING COMPANY vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 81; 1857 Md. LEXIS 24 

JUNE, 1857, Decided 

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

This was a scire facias upon a mechanics' lien, filed by the appellant against fifty cars or coal hoppers, and against Scott & Bolster and the appellee, the owners or reputed owners thereof, claiming the sum of $ 2278.80 for materials furnished and used in the construction of the same. Plea, non assumpsit.

Exception. By a statement of facts it was admitted, that the plaintiffs, a corporation of New York, sold and delivered to Scott & Bolster, machinists of the city of Baltimore, two hundred car rubber springs for $ 2278.80, which still remains due and unpaid; that the car-springs so furnished were intended for and used by Scott & Bolster in the building and construction of fifty coal cars, built by them under a contract for the Baltimore and Ohio Rail Road Company, each of the cars having four of these springs in or on it; that these cars were furnished and delivered to the rail road company, and are now in their possession and in use on their road; that the body of each car is of sheet iron, and is divided into three compartments, the upper part of which is cylindrical and the lower part in the form of a frustum of a cone,  [**2]  the under edge of which has a flange secured upon it, to which a movable bottom is attached; this bottom is made movable in order to discharge the load through the aperture left by removing it; and each car has one or more rubbers or brakes to regulate its speed. It was also admitted, that due notice of the filing of the lien was given to the rail road company.

The plaintiff then prayed the court to instruct the jury, that if they believe the facts stated in the proceedings and statement of facts given in evidence, then the plaintiffs are entitled to recover the amount of their claim; but the court, (FRICK, J.,) rejected this prayer and instructed the jury, "that their verdict must be for the defendant;" to which opinion and instruction the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Coal cars are not subjects of mechanics' liens under the act of 1845, ch. 176; the word "machine" used in that act applies only to fixed or stationary machinery, and does not extend to movable machines. 

COUNSEL:
Llewellyn F. Barry for the appellant.

The act of 1838, ch. 205, sec. 1, subjects "every building, erected within the city of Baltimore, to a lien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the same." By the act of 1845, ch. 176, sec. 4, it is enacted, that [**3]  "every machine hereafter to be erected, constructed or repaired, within the 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;" and by section 5: "That any person or persons furnishing work or materials, or both, upon the compliance with the requisitions of this and the original act, shall be entitled to the benefits and advantages of said acts." By the act of 1845, ch. 287, sec. 1, it is declared: "That in the construction of the original lien act, and of its supplement, the same effect shall be given as to acts of Assembly which confer a general jurisdiction, or are remedial in their nature;" and by sec. 2nd: "That the said acts of Assembly shall extend to all work done or materials furnished," &c.

The question of the validity of the lien, in this case, depends on the construction to be given to the above laws and the meaning of the word "machine," as used in the 4th sec. of the act of 1845, ch. 176, whether it embraces the coal cars on which this lien was laid. On the construction of these laws we insist:

1st. That it is the duty of the court to give them such a construction as [**4]  will suppress the mischief and advance the remedy. Dwarris on Statutes, in 9 Law Lib., 694, 697, 718, 720, 721, 722. 1 Bl. Com., 87. Applying this rule of construction the plaintiffs are found to be within the mischief, for the remedy of which these lien laws were passed, and are, therefore, within the spirit of the act. No one can believe, that the legislature, in passing these laws, would designedly exclude the mechanic, who contributed work or materials for coal cars, from the benefit of a lien, while they were giving that privilege to his fellow mechanic, working, perhaps, by his side, under the same roof, on other machines. "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter." Bac. Abr., Art. Statute, Letter J., sec. 5. "In order to form a right judgment, whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him the question: Did you intend to comprehend this case? then you must give yourself such answer as you imagine he would have given." Ibid., sec. 6. By this rule the appellant's case is certainly within the equity of the lien acts.  [**5]  This court gives a very liberal construction to these acts, ut reus magis valeat quam pereat. 3 Md. 168, Okisko Co. vs. Matthews.

2nd. The appellants are not only within the spirit of these, but are also within the letter, these coal cars being within the strict and proper meaning of the word, "machines." For the meaning of the word "machine" see Webster's Dict., 683, Art. "Machine" and "Mechanics." Comstock's Philosophy, (subject, "Mechanics,") 64, 65, 66, 92. Rees' New Cyclopedia, Vol. 22, part 2, title "Machine." Penny Cyclopedia, 247, (Art.) "Machine." Oswald's Etymological Dict., (Art.) Machine. Roget's Thesaurus, 633. Appleton's Dict. of Mechanics, 292. Worcester's Dict., (Art.) Machine. Johnson's Dict., (Art.) Machine. Richardson's Dict., (Art.) Machine. Barclay's Dict. by Dewhurst, 571, (Art.) Machine. Universal Technological Dict., by Crabb, (Art.) Machine. Edinburgh Encyclopedia, (Art.) Machine. Builders of cars, particularly of iron coal cars, are invariably called "machinists." The word machine is a general and comprehensive word, there being many species of which it is, as it were, the genus. In this sense the Legislature used it in the act of 1845. This appears [**6]  also from the fact of their using but one word to embrace the subjects liable to lien. In the original act they used the word "building." In the amendment of 1845, they used the word "machine." Each being the broadest and most comprehensive general term known to the English language, applicable to the subject. In this sense, too, we find it (from the authors above cited) used by philologists, lexicographers, learned writers on mechanics, philosophy and the sciences; and also by those classic writers who are authority in the right use of words and their meaning, and who are recognized as models of taste and propriety, and have contributed to the elevation and formation of the language in which they wrote. Thus Virgil elegantly applies the word to that invention of Minerva, the Trojan horse: 

--Scandit fatalis machina muros, foeta armis.

The meaning of this word machine is scarcely now a mooted question, as the Supreme Court of the United States have decided its meaning, and in accordance with that contended for by the appellants. The word occurs in the patent laws of the United States, Act of Congress, July 4th, 1836, ch. 357, sec. 6. By this section, "any person or [**7]  persons, having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, &c., may obtain a patent therefor." Now cars are not only patentable, but these identical cars are the subject of a patent. Suits have been tried in the Supreme Court in regard to an alleged violation of their patent right. The right to patent them as machines has never been questioned, but repeatedly recognized by that court. See Winans vs. Denmead, 15 How., 339, where a description of the cars appears corresponding with that in the statement of facts in this case, but fuller and more minute, and containing an account of the principles of the invention, and the advantages of the machine over others. No patent can be obtained unless the subject matter is included within the meaning of one of the four words used in the act of Congress, viz: 1. Art. 2. Machine. 3. Manufacture. 4. Composition of matter. The meaning of each one of these words has been given by the elementary writers on the law of patents, both in this country and in England, and recognized and adopted by the decisions of the courts. These cars do not come within the [**8]  definitions of the terms, "art," "manufacture" or "composition of matter," as given by these writers and decisions. See Curtis on Patents, secs. 90, 91, 92, 102 and note 2, 103. 1 How., 204, McClurg vs. Kingsland, et al. Webster's Patent Cases, 512, 517, Cornish vs. Keene. There remains then but one other term, used by the act of Congress, under which cars are patentable, viz: "Machine." In Curtis on Patents, sec. 93, it is said: "A machine, to be the subject of a patent, must be a particular construction of mechanism, containing the improved method of producing the old effect, or the method of producing a new effect. If the subject of the invention or discovery is not a mere function, but a function embodied in some particular mechanism, whose mode of operation and general structure are pointed out, and which is designed to accomplish a particular purpose, function or effect, it will be a machine in the sense of the patent law. A machine is rightfully the subject of a patent when well known effects are produced by machinery entirely new in all its combinations, or when a new or old effect is produced by mechanism, of which the principle or modus operandi is new." In 15 How., 267,  [**9]  Corning vs. Burden, Justice Grier, delivering the opinion of the court, gives the definition of this word thus: "The term machine includes every mechanical device, or combination of mechanical powers and devices, to perform some function and produce a certain effect or result."

These definitions of the word machine, will include in their meaning these cars. They are a "mechanical device, or combination of mechanical powers and devices, (i. e., the lever, wheel, axle and inclined plane,) "to perform some function and produce a certain effect or result," (i. e., to carry coal or heavy lumps more securely and in larger quantities, in proportion to the weight of the car, than can be done in any other manner, or by any other machine.) They are patentable as machines, and were patented as such. In Winans vs. Denmead, 15 How., 330, Justice Curtis, in delivering the opinion of the court, as also the patentee in his specification, is continually calling these very cars machines, and throughout his opinion, the learned justice uses the words invention, structure, device, machine, one for the other as synonyms, and designates these cars by each of these terms. If these cars reap the benefit [**10]  of, and partake of advantages as machines, they must also assume the responsibilities of machines. If they are machines under the patent laws, they must be machines under the lien laws.

3rd. Again, the appellants contend that the court below erred in taking the case from the jury, to whom questions of fact belong. Whether a car is a machine or not, is a question of fact. Under the statute of Missouri, which gives a lien on boats and vessels, and their appurtenances, it was held by the court that it was for the jury to determine what are appurtenances. 9 Missouri, 629, Amis vs. Steamboat Louisa. So, by like reasoning, when a statute gives a lien on machines, it is for the jury to determine what are machines.

Chas. J. M. Gwinn and John H. B. Latrobe for the appellee, argued:

1st. The rejection of the appellant's prayer was right, because even if the particulars set forth in the statement of facts were sufficient to authorise the jury to find from them that the coal cars in question were machines, the prayer ought to have left it to the jury to find the further fact, that such cars so constructed were, in point of fact, machines, and not have taken this fact from the jury [**11]  and reserved it to the court, as it practically does. Whether these cars are machines or not, if there is any evidence on this point, is a matter of fact for the jury, and for the jury alone. How can the court know, judicially, that the mechanical elements described in the agreement as in combination, do constitute the car into which they enter, a machine? For taking this fact from the jury, the prayer was properly rejected. 5 H. & J. 486, Hayes vs. Lusby. 11 G. & J. 367, Abell vs. Harris. 12 Do., 236, Gray vs. Crook. 15 Ala., 378, Orr vs. Burwell. 4 How., 403, Stimpson vs. Westchester Rail Road Co. 5 Do., 4, Wood vs. Underhill. 14 Do., 226, Silsby vs. Foote.

2nd. The court was also right in instructing the jury that their verdict must be for the defendant. For there was no evidence to go to the jury, in point of fact, that these coal cars were such machines as were contemplated by the act of 1845. To make any article in its entirety, as a whole, a machine, it must, as a whole, apply or regulate moving power. It does not become a machine, as a whole, because of a mechanical contrivance attached to it, unless the purpose of such mechanism is an essential part of the main [**12]  object of its construction, and not a mere addendum to facilitate secondary uses. For a definition of the word "machine," see Richardson's and Webster's dictionaries, and Tomlinson's encyclopedia. These cars do not meet the definitions cited by the appellant from Curtis on Patents, 81 to 93, nor from the case of Corning vs. Burden, 15 How., 252, any more than a water-bucket with a more convenient spout, or any mere contrivance adapted to a common utensil would. And it is equally clear that the point is not affected by the statement, in the argument of the appellant, that these cars have been patented as machines. There is no proof of this in the case, and if there was, it would not affect the meaning which the word would receive when construed as occurring in the act of 1845.

3rd. It is respectfully urged upon the court (notwithstanding some observations which have fallen from them) that the law of 1845, ch. 176, sec. 4, does not relate to machines of this character, but to stationary machines connected with the realty. And, therefore, even if we concede that these coal cars were machines, the court below was right in its instruction, that the defendant was entitled to a verdict.  [**13]  The act of 1845, ch. 176, is a supplement to that of 1838, ch. 205. It is an undoubted rule of construction, that the law of 1845 must be so construed that no part of the act of 1838, to which it is a supplement, shall be superfluous, void, or insignificant. Bac. Abr. Title Statute, Letter J. 2 Cranch, 386, 399, Fisher vs. Blight. 4 G. & J. 128, 152, Canal Co. vs. Rail Road Co. This rule of construction cannot be applied to the act of 1845, without making it apparent that the law contemplated only machines which were attached to the realty, as permanent and located fixtures, otherwise the sections from the 2nd to the 9th, inclusive, in the act of 1838, are totally superfluous, void and insignificant. There was a manifest reason for extending the benefit of the lien law to those machines which become fixtures upon land, and which required land to enable them to be worked. But if the rule of construction insisted on by the appellant is sound, a watch sent to be repaired, and returned to the custody of its owner, may be made the subject of this proceeding; for a watch is undoubtedly a machine. Can it be supposed the Legislature contemplated such results? The very writ of execution [**14]  indicates that machines which were annexed to the realty were in contemplation of the Legislature. A writ of levari facias at common law concerned the realty, and its adoption into our law indicates the intention of the Legislature so to apply it.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*89]  BARTOL, J., delivered the opinion of this court.
The question presented for decision by this appeal is, whether certain "coal cars" described in the statement of facts found in the record, are the subject of mechanics' lien, under the provisions of the act of 1845, ch. 176, and involves the construction of that act, and of the act of 1838, ch. 205, to which it is a supplement.
Although those acts have been the subject of several adjudications in this court, the question presented by the record has not before been directly decided. In the case of Wells & Miller vs. The Canton Company, 3 Md. 234, and the case of Denmead vs. The Bank of Baltimore, 9 Md. 179, which were cases of liens on machinery, under the act of 1845, the machinery, which was the subject of the lien, was of a fixed or stationary [**15]  kind.
Admitting the coal cars in this case to be, in point of fact, machines, we are of opinion that they are not such machines as are contemplated by the act of 1845. The language of the 4th section of that act is: "That every machine hereafter to be erected, constructed, or repaired, within the 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 is a supplement."
It has been argued that the word machine, in this section, being used without qualification, is extensive enough to embrace all kinds of machines, as well those which are movable as those which are fixed or stationary.
Such a construction would be fraught with the most mischievous consequences. The word machine, if to be taken in its most extended signification, means every thing which acts by a combination of the mechanical powers, however simple or complex it may be. The ingenious argument of the appellant's counsel, and the authorities he cites are sufficient to demonstrate that this word, if to be understood in its broad general sense, will not only comprehend locomotives, 

 [*90]  threshing machines, [**16]  and such like, but that all the various machines used in agriculture and commerce, carriages and vehicles in ordinary use, even watches and clocks, and all the machines in domestic use, would be alike embraced in the terms of the law. Can it be for a moment supposed that the legislature designed to subject all these to the operation of the lien laws? Such things, like the coal cars in question, are mere chattels which pass by delivery; a construction which would embrace them within the provisions of the lien laws, would interrupt the daily transactions of trade in such articles, and render the rights of property in them insecure.
In looking at the provisions of the lien laws, and applying to them the safe and well-established rules of construction which are to govern us, in arriving at the intention of the legislature, we are the more convinced of the propriety of limiting and restraining the meaning of the word machine, used in the law to fixed or stationary machinery. We adopt the language employed by Judge Buchanan, in delivering the opinion of the Court of Appeals, in the case of the Canal Co. vs. The Rail Road Co., 4 G. & J. 1, 152: "Statutes should be [**17]  construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. That, therefore, which is within the letter of the statute, is sometimes not within the statute, not being within the intention of the makers."
We are to inquire, "what was the mischief and defect against which the common law did not provide?" and which the statute was designed to cure; and "it is the duty of the court to make such construction as shall suppress the mischief and advance the remedy." Dwarris on Stat., 9 Law Lib. 694. In this case the mischief to be cured was, that by the common law, the mechanic who erects, constructs or repairs fixed or stationary machinery, like him who builds a house, is without that safe security for compensation which a 

 [*91]  specific lien on the house or the machine would afford; the design of the act of 1838, and its supplements, was to afford that security.  [**18]  But with reference to movable machines, the common law affords ample and complete security to the mechanic, by leaving in him the right of property, or in the case of repairs done, giving him a lien thereon, while they remain in his possession; and he has the right to retain the possession and his right of property, or his lien, until his claim for construction or repair is paid. There is no sound reason for imputing to the Legislature the intention of extending the operation of the lien laws to cases which were not within the mischief sought to be remedied. We have not failed to consider the provisions of the act of 1845, ch. 287, which directs that the lien laws under consideration shall receive a liberal construction, as remedial acts. But after mature reflection, we are constrained to adopt the conclusions already stated as entirely consistent with the rules of construction governing the subject.
The act of 1845, makes machines 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. The original act of 1838, and the supplement, must therefore be construed together, as one act; and looking [**19]  to their various provisions, the manner in which the lien is to be asserted, the mode and time prescribed for filing the claim of record, and the form of the action and execution for its recovery, we cannot hesitate in saying, that many of the provisions of the law are inapplicable to movable machines, and conclusively show that the legislature did not intend to embrace them within its operation.
These conclusions are at variance with some of the language employed in the opinion of this court, in the case of Denmead vs. The Bank of Baltimore; and while we adhere to the judgment pronounced by the court in that case, we are compelled to say, that a careful consideration of the question before us, has convinced us that the construction of the word machine, in the act of 1845, as extending to such as are "movable in their operation and use, such as a locomotive, a 

 [*92]  threshing machine, and the like," is not justified by sound rules of interpretation, or in accordance with the intention of the legislature. This question did not arise in the case just cited, and its decision was not involved in the judgment pronounced by the court.
In the decision of this case, we have [**20]  considered the question presented as if the coal cars, which are the subject of the lien, were admitted to be machines--a question, however, which we do not mean to decide--and being of opinion that they are not within the provisions of the act, subject to mechanics' lien, we concur in the propriety of the instruction given to the jury by the Superior Court, and affirm the judgment.
Judgment affirmed. 

8 of 47 DOCUMENTS 

CHARLES STREET AVENUE COMPANY vs. JOSEPH MERRYMAN and OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 536; 1857 Md. LEXIS 18 

JUNE, 1857, Decided 

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

This appeal was taken from an order of the court below, (PRICE, J.,) granting an injunction, upon a bill filed by the appellees, to restrain the appellant from making a road upon the land of the complainants.

The act of 1854, ch. 204, incorporating the Charles street Avenue Company, recites, in its preamble, that "It has been represented to this General Assembly, by many of the inhabitants of the ninth election district of Baltimore county, and others, that additional highways leading to the city are much required for the public convenience in that part of the county, and that an avenue leading from the present termination of Charles street would greatly promote that convenience." The first section then enacts: "that a company be incorporated to make a Turnpike road from the present Northern terminus of Charles street, in or near the city of Baltimore, to a point on the road, known as the Powder Mill road, in Baltimore, near the powder magazine." The subsequent sections provide for subscriptions to the stock, the organization, name and management of the company, and the ninth section invests the company [**2]  so organized "with all the powers and authority necessary for the construction of a turnpike, between the termini, mentioned in the first section of this act," prescribes the width of the road, and of what materials and in what manner it shall be constructed, and then, "in order that the route or intended course of said road may be known to all concerned, with as much precision as possible," this section further enacts: "That said road shall commence, as aforesaid, at the present termination of Charles street, and shall run thence in a direct line with said street extended in a direction about due north, until it reaches or approximates the northern outline of a farm in said county, known as Clover Hill, the property of Joseph Merryman and others, thence diverging to the west or northwest," and following a route, which is particularly defined, to the other terminus. The tenth section gives the company power to purchase and condemn lands and materials for the use and construction of the road. The twelfth then enacts: "that nothing in this act shall be construed to authorise or empower the location of the said Turnpike road through or over the grounds occupied by the Maryland State Agricultural [**3]  Society, without their consent, or until they shall have abandoned the use of said grounds as a place for the holding of their annual show or fair, nor shall it be lawful to lay out or extend the said road through the buildings, yards, or orchards of any person or persons, without the consent of the owner or owners thereof."

The bill alleges that the complainants are owners in fee of Clover Hill farm, mentioned in the ninth section of this act, and believing it would be for their advantage, as such owners, to have Charles street extended in a straight line so as to cross their land, and desiring to advance their interests in that behalf as well as the public convenience, they gave their support and furtherance to a plan projected for such extension, which found such favor with the General Assembly that the above mentioned law was passed; that by reason of the inducements afforded by the route prescribed in this act, they, and others, subscribed to the capital stock of the company, which was duly organised, and proceeded for a time to carry out the directions of its charter, but afterwards, in continuing to lay out and construct the road between the end of Charles street and the [**4]  southern edge of Clover Hill, instead of pursuing, as it ought, a straight course about due north, the road was made, at a place on the land of one Wyman, to deviate for the space of 1850 feet and pursue a circuitous and longer route, which at some points is distant full 300 feet from the proper straight line; that complainants opposed the purpose so to deviate when it was first formed, and have continued to resist and protest against it, but the company, nevertheless, has established this deviation as the permanent route for, and have constructed the road thereon, and have now no purpose to relinquish it, and pursue the direct north course prescribed by the charter, and in making this deviation the company has plainly violated its charter; that this deviation operates to the great injury of the complainants, for had the road pursued, as it ought, a straight course from the end of Charles street across their farm, its value would have been greatly enhanced thereby, and building lots thereon brought a higher price than they can if the road persues the circuitous course as now laid out, and had the road been continuously straight the property of the complainants on the line thereof would [**5]  have commanded an unobstructed view to the city of Baltimore, of which advantage it is deprived by this deviation; that complainants never would and never did consent to any plan by which this road should be made through their land in any other than a straight line with Charles street, and it was because they saw the charter had prescribed such a course, and relying upon a faithful adherence thereto by the company, that they came to its support; that notwithstanding the cesser and suspension of its powers caused by this deviation, the company is proceeding to make the road across complainants' farm, and has commenced to pull down the fences and make excavations of the soil, for that purpose, though expressly forbidden and prohibited by them from entering or trespassing thereon, all of which actings, doings, and proceedings, are contrary to equity, and tend to the irreparable injury of their farm and of the complainants. The bill then prays for the injunction, which was granted, and from the order granting it, the defendant, after answer filed, appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

An act of Assembly reciting that additional highways, leading to the city of Baltimore, "are much required for public convenience, and that an avenue leading from the present termination of Charles street, would greatly promote that convenience," incorporated a company to make such a road. By this act it is provided that the road shall commence at the present northern termination of Charles street, "and shall run thence in a direct line with said street extended, in a direction about due north, until it reaches the northern outline" of a farm called "Clover Hill," thence in a prescribed line to the other terminus. Power is then given the company to condemn lands to construct the road, and by the twelfth section it is enacted, that it shall not be lawful "to lay out or extend the said road through the buildings, yards or orchards, of any farm, without the consent of the owner." HELD:

That this act was passed for the public convenience and benefit, and the prohibitory restrictions contained in the twelfth section must be construed as requiring and authorising a deviation or change in the location of the road at such points, from the prescribed route, and not as a cesser of the corporate franchise in case the consent of the owners cannot be obtained.

The mode of obtaining such charters from Parliament is different from the legislative practice in this State; this charter must be construed as found on the statute book, and operation and effect given to it according to the intention of the Legislature to be gathered from its provisions.  

COUNSEL:
J. Malcolm and Charles H. Pitts for the appellant, argued:

1st. That the company had not violated its [**6]  charter. By the terms of the 12th section, it was expressly forbidden to construct a road through the yards and orchards of any person on the route without the owner's consent, and, therefore, was authorised by necessary implication to deviate from the direct north line, whenever such line should intersect any thing laid down in the restrictions of the charter. The bill does not allege, that the company obtained the consent of Wyman, upon whose lands the deviation was made, or that it had the power to pass straight through his property, and there is, therefore, a failure to allege that the deviation was made by default of the company. The bill should have excluded every restriction contained in the charter. The English Railway Cases are not applicable to this charter; for the mode of obtaining such charters in England, is entirely different from our legislation in such matters, and most of the English charters contain words of express prohibition. In construing this charter, every part of it must be considered, in order to effectuate the intent which the Legislature manifestly had in view by its passage. Its preamble declares, that public convenience required additional highways leading [**7]  to the city of Baltimore. Its object, therefore, was to make an ordinary country highway for public convenience, not to bring the property of the appellees within the city limits that they might sell it for city lots at fancy prices. Nor did the Legislature intend the road should pursue an undeviating straight line. There were no lines or maps before the Legislature as in the English cases, and the 9th section of this law is a mere indication of the route of the road, and contains not a word which says there shall be no deviation. In order that those concerned may know, as nearly as possible, the intended route, its general direction is defined to be about due north. The design was to open up to that region of country a convenient avenue to the city, and thus remedy the evil complained of. The road was prohibited from passing through buildings, yards or orchards, without consent of the owners, but it was never intended it should stop unless such consent could be obtained, and such restrictions clearly show, that the Legislature could not have contemplated it should be built in an undeviating straight line. In making this deviation, therefore, there was no cesser of corporate powers.  [**8]  Nor is there any equity in the complainants' case: they stood by, saw the work going on, the deviation permanently made, and permitted the road to be built up to their farm, and then, after thus obtaining all the benefit of the work, say to the company, you shall stop here, and our neighbors north of us, who united with us in the application for the charter, shall not be benefitted thereby. They are guilty of laches, 1 Swanst., 244, Mayor &c. of King's Lynn, vs. Pemberton.

2nd. That even if there was a deviation not allowed by the charter, there is no such irreparable damage done to the complainants, and stated upon the face of the bill, as would authorise a court of equity to grant an injunction. 1 Md. Rep., 545, White vs. Flannigain. 3 Do., 489, Chesapeake & Ohio Canal Co., vs. Young.

Richard J. Gittings and A. W. Machen for the appellees, argued:

1st. That by deviating, in one part, from the line prescribed by the charter, the company deprive themselves of the right to pursue the statutory line over the land of other owners, who are injuriously affected by such deviation. The 9th section of this charter defines the line of every foot of the road. A straight course [**9]  must be pursued until it passes through "Clover Hill." If it had been intended that the road should have been made by any other than a direct line to this point, the Legislature would have so provided. The 12th section restricts the road from passing through the grounds of the Agricultural Society, and through buildings, yards and orchards, without the consent of the owners, and if these obstructions are met with, and the required consent cannot be obtained, the road must stop. A corporation can only exercise the powers which are expressly granted to it, and no power having been given to make a deviation, none can be made. 1 Mylne & Keen, 162, Blakemore vs. Glamorganshire Canal Navigation Co. 6 Mees. & Wels., 340, Payne vs. Bristol Railway Co. 2 Do., 824, Lee vs. Milner. 1 Swanst., 250, Mayor of Kingston, vs. Pemberton. 9 Beav., 391, Gray vs. Liverpool & Bury Railway Co. 12 Do., 134, Cohen vs. Wilkinson. 3 Barn. & Adol., 108, King vs. Cumberworth. 1 Nev. & Perry, 197, King vs. Cumberworth. 2 Perry & Davidson, 648, Queen vs. Eastern Counties Railway Co. 6 Nev. & Man., 91, King vs. Edge Lane. 11 Pet., 545, Charles River Bridge, vs. Warren Bridge. 9 How., 186, Perrine vs. Chesapeake &  [**10]  Delaware Canal Co. 21 Penn. State Rep., 22, Penn. Railroad Co., vs. Canal Commissioners. 8 Richardson, 177, Rail Road Co., vs. Payne. Dwarris on Statutes, 661.

2nd. That a permanent deviation having been made, the complainants were entitled to an injunction to restrain the company from proceeding upon their land. 2 Eden on Injunction, 371, 374, note, and cases above cited. This deviation makes the road a different road from that laid down in the charter, and the complainants, as land-owners, have the right to say to the company, you cannot use our land for a different purpose from that contemplated by your charter. According to the English authorities before cited, this is not a case of mere trespass but of contract, the breach of which may well be enjoined. It is a distinct ground of equity jurisdiction, to restrain incorporated companies from an abuse of their powers to the injury of individuals. 2 Story's Eq., sec. 927. 7 Md. Rep., 511, Steuart vs. Mayor & C. C. of Balto. 1 Eng. Railway Cases, 153, Dun River Nav. Co., vs. North Midland Counties Railway Co. 31 Eng. Law & Eq. Rep., 252, Pinchin vs. London & Blackwall Railway Co. But even if the injunction rested solely upon the [**11]  ground of irreparable mischief, such mischief abundantly appears by the bill: the farm of the complainants is threatened with alteration as such, (1 Md. Rep., 545, White vs. Flannigain,) and secondly, a permanent easement is about being unlawfully established upon it.  

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

OPINIONBY:
TUCK 

OPINION:

 [*542]  TUCK, J., delivered the opinion of this court.
The act of 1854, ch. 204, under which the Charles Street Avenue was commenced, was passed for the public convenience and benefit, by affording an additional highway between Baltimore city and the county, the termini and route of the road being indicated in the act. It does not appear that the owners of property on the line of the road were parties to this legislation, and assented to the act, even conceding that that would have furnished an equity against its further construction in the direction proposed. It is a law passed in the exercise of legislative authority clearly possessed by the State, by virtue of which the company were authorized to condemn and appropriate private property for the uses of their charter. The appellees may have had private views in giving [**12]  their support in furtherance of the plan for this improvement, but if these are likely to be frustrated by the conduct of the company, as now complained of, there is nothing in the act to show, that 

 [*543]  the plan was to fail altogether on that account. We may therefore lay out of view all that is averred in the bill, as to what the appellees expected to have enjoyed by opening this avenue.
We need not review the English canal and rail road cases referred to in the argument, because the mode of obtaining such grants of power from Parliament, is different from the legislative practice in this State, and the cases differ in other respects. We must take this charter as we find it on the statute book, and give it operation and effect according to the intention of the Legislature, to be gathered from its provisions.
It may be conceded that, apart from the twelfth section, the company would have been confined to a direct line to "Clover Hill." But, then, it might have passed through buildings, yards, and orchards, without the assent of their owners, by force of the authority conferred by the tenth section, to condemn property for the location and construction of the road. This being [**13]  so, the case must depend upon the effect to be given to the twelfth section, and the construction to be placed upon the whole act. In this aspect, one of two conclusions must be arrived at; either that the company must be permitted to diverge from the route indicated, as far as may be necessary to comply with the terms of that section, or the improvement must cease altogether, if such obstacles are presented, and the owners will not agree to have their buildings, yards, and orchards, appropriated for the purposes of the law; and the question for our decision is, which of these two results did the Legislature intend?
It was said, in argument, that if the Legislature had intended an avenue should be made by any other than a direct line to "Clover Hill," the law would have so provided. We think that no satisfactory conclusion can be deduced from the want of express words conferring such a power, because it may as reasonably be said, that if the avenue was to have been opened to that point, by a direct line and no other, and the Legislature had designed that the public convenience should be promoted by having an additional highway, only in the event of its being 

 [*544]  straight as [**14]  far as "Clover Hill," appropriate language would have been employed to give that effect to the twelfth section. But this was not done. The act clothes the company with ample powers to make a public improvement, imposing terms of restriction, as to the condemnation of particular kinds of property, and we are asked to say that these, by necessary implication, were designed to defeat the purposes of the grant, if the contingency mentioned in that section should arise. We think the whole act must be considered in connection with what was the expressed purpose of the State in conferring those powers upon the company. And, seeing that the public benefit was in the contemplation of the Legislature, and that the act does not destroy or take away the authority of the company, upon the state of things referred to in the 12th section, the prohibitory words employed should be construed as merely requiring a change in the location of the road at such points, and not as a cesser of the corporate franchise.
Being of opinion that the injunction was improvidently issued, the order appealed from will be reversed.
Order reversed. 

9 of 47 DOCUMENTS 

OTHO W. EICHELBERGER and JAMES P. ERSKINE, vs. WILLIAM F. MURDOCK and ALEXANDER MURDOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 373; 1857 Md. LEXIS 1 

JUNE, 1857, Decided 

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

Assumpsit brought by the appellees against the appellants, to recover the amount of certain drafts and a promissory note, drawn and made by Lake & Co., and endorsed by the defendants, dated respectively the 5th of December 1842, and the 6th of February 1843, and assigned by the Union Bank to the plaintiffs. Plea non assumpsit.

Exception. The facts of the case are fully stated in the opinion of this court. The plaintiffs asked two instructions, the first of which the court, (FRICK, J.,) rejected, but granted the second. The defendants also offered two prayers, which the court rejected. The plaintiffs' first prayer, asserts their right to recover the whole amount of the drafts and notes, sued on, with interest from maturity, provided, the jury find they were drawn by Lake & Co., endorsed by the defendants, and duly protested, and that the Union Bank, on the 23rd of August 1843, transferred them to the plaintiffs for value, and paid to the plaintiffs $ 2243, the balance of the proceeds of the stock mentioned in the evidence, and that this stock was sold by the authority of Lake & Co., and the surplus so paid over, under the letter [**2]  of Lake & Co., to the cashier of said bank, of the 14th of June 1843, and that the several papers offered in evidence were executed by Lake & Co., and that when the drafts and note were so transferred, and said surplus so paid to the plaintiffs, the bank then held liabilities of the plaintiffs, for the accommodation of Lake & Co., upon which Lake & Co., were liable to the bank, and also other liabilities of Lake & Co. The other prayers are sufficiently stated in the opinion of this court. Both parties excepted to the ruling of the court below and appealed, but the plaintiffs dismissed their appeal, after the argument of the case in this court was concluded.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a consignee receives goods or money with instructions to deliver or pay them to a third party, such party cannot maintain either trover or an action for money had and received, until the consignee does some act by which he binds himself to such third party; without such act there is no privity of contract between him and the third party, and the title still remains in the consignor.

A letter, directing a bank to which the writer had pledged certain stock as collateral security for a specific debt, "to hold the stock as a general collateral security for all the writer's liabilities to the said bank, at present existing or which may hereafter be incurred by him," authorises the bank to apply the surplus of the stock, after payment of the specific debt, pro rata, to all such liabilities.  

COUNSEL:
T. Yates Walsh and John Nelson for the appellants, argued:

That the ruling of the court below, in granting the prayer of the appellees and rejecting those of the appellants, was erroneous, because by the terms of the authority derived from Lake & Co., the Union Bank was bound to apply the surplus paid over to the appellees, to the notes and bills of exchange of Lake & Co., upon which the appellants were endorsers and acceptors, and that the arrangement made between the bank and the appellees with a [**3]  view to avoid such application, was a fraud upon the rights of the appellants. The instructions by Lake & Co., directed the surplus to be paid to any paper of theirs, which the bank should deem itself insecure in. The proof shows that the paper of Lake & Co., endorsed by the defendants, was insecure, and that the bank so deemed it. What right then had the bank to go out of the terms of the instructions applying the surplus proceeds of this sale, and pay it over to the plaintiffs? The plaintiffs had no interest whatever, as holders or endorsers of the paper of Lake & Co., endorsed by the defendants. One of the plaintiffs was a director in the bank, knew of the arrangement between it and Lake & Co., in regard to this application, and their effort to appropriate these funds in a mode different from that specified in that arrangement, is in fraud of the defendants. 1 Md. Rep., 85, 86, Bayne vs. Suit.

Reverdy Johnson and Reverdy Johnson, Jr., for the appellees, argued:

1st. That the court erred in rejecting the first prayer of the plaintiffs, because having paid the bank full value for the note and acceptances sued upon, the plaintiffs were entitled to recover their full amount [**4]  with interest, although they received from the bank the $ 2243, surplus sales of stock, as the bank was not prohibited negotiating these securities for value, nor was it prohibited securing itself as to these, or any other of Lake & Co's liabilities, by other means than by the pledged stock. 14 East, 582, Williams vs. Everett. 3 Price, 58, Grant vs. Austen. 1 Mees. & Wels., 365, Brind vs. Hampshire. 5 Pet., 580, Tiernan vs. Jackson.

2nd. That the court, if it did not err in rejecting the plaintiffs' first prayer, was not in error in granting the second, nor in rejecting those of the defendants, because the most favorable construction of the letter of Lake & Co., of the 14th of June, to which the defendants are entitled, is that the surplus proceeds of stock was to be divided, pro rata, among all Lake & Co's liabilities to the bank, in which the bank deemed itself insecure, (which must have been the case with most, Lake & Co. having then failed,) and not that the surplus should be applied exclusively for the defendants' benefit; the bank could therefore have recovered of the defendants, any balance on the note and acceptances now in suit, after deduction of a proportionable dividend [**5]  of the surplus, and its assignees for value, the plaintiffs, are equally entitled to recover to that extent. The stock was originally pledged to secure the specific loan of $ 8100, and nothing more. The object of the paper of February 1843, was to let the bank hold on to the excess of this stock, over the $ 8100, for any paper on which Lake & Co. were then, or might thereafter, be liable to the bank. The paper of June 1843 was not necessary to enable the bank to apply the stock; it had this already by the previous paper. This latter paper was given for a different purpose. It was not designed to give the bank any security, but to give the plaintiffs the security, after payment of any debts the bank deemed insecure. It does not change the right of the bank to apply the surplus to any debts it deemed insecure, and the acceptance of this paper is no promise on the part of the bank, to apply the surplus to any such debts. It simply says, apply the surplus as you had a right to do under the paper of February 1843, and then the balance to the Murdocks The insecurity is a matter to be judged of by the bank, at the moment the stock was sold.  

JUDGES:
The cause was argued before LE GRAND, C. J.  [**6]  , ECCLESTON, and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*376]  LE GRAND, C. J., delivered the opinion of this court.
This was an action brought by the appellees against the appellants, to recover the amount of certain drafts, and a promissory note, drawn and made by Lake & Co., of New Orleans, and by the appellants endorsed. The drafts and notes were discounted at the Union Bank of Baltimore, for the accommodation of Lake & Co. There is no question of sufficiency of demand and notice, nor of the genuineness of the paper. The dispute arises out of a state of facts which may be thus indicated: It appears from the record, that on the 13th day of February 1843, the Union Bank of Maryland, as collateral security for the payment of a specific liability of Lake & Co., held one hundred and fifty shares of the stock of the Farmers and Merchants Bank of Memphis, Tennessee; and on that day received from Lake & Co., the following letter:
"Baltimore, February 1843.--The President and Directors of the Union Bank of Maryland, are hereby authorized to hold the one hundred and fifty shares of the stock of the Farmers 

 [*377]  and Merchants Bank of Memphis, now standing in their name as a general collateral [**7]  security for all our liability to the said bank at present existing or which may hereafter be incurred by us.
LAKE & Co."
On the 14th day of June, the bank received the following note:
"Baltimore, June 14th, 1843.--In conformity with the original understanding between Messrs. W. F. & A. Murdock and ourselves, in regard to their paper discounted for our use, by, and now held by your bank, we beg to inform you that any surplus arising either from sale or otherwise of the F. & M. Bank, of Memphis stock, now held by your bank, and for any other paper of ours your bank deems itself insecure in, is to go towards the liquidation, with your bank of any of our said paper drawn or endorsed by W. F. & A. Murdock.
With great respect, &c.
LAKE & Co."
On the 8th day of September 1843, Lake & Co. authorized the bank to sell the stock which had been hypothecated, and which was accordingly done on the 9th of the same month, realizing therefor $ 69.50 per share, making in the aggregate $ 10,425. In notifying Lake & Co. of the sale, Mr. Mickle, the cashier of the Union Bank of Baltimore, after stating the amount of sale, says, leaving "a surplus according to the statement of account herewith submitted,  [**8]  of $ 2243.44, which surplus has been paid over to Messrs. W. F. & A. Murdock, under your letter to the bank of the 14th of June last." On the same day the amount ($ 2243.44) was paid to the Messrs. Murdock, and receipted for by them. In the receipt given by them is the following:--"We hereby, in consideration of the receipt of the above mentioned sum of money, guaranteeing the said Union Bank of Maryland from all loss or damage they may sustain by reason of the said payment." After these facts were given in evidence, it was proven, that the bill of exchange, promissory note and draft, to recover the amount of which this suit was brought, were assigned on the 26th day of August 1843, to the appellees, the bank receiving therefor from them the full amount thereof. It was shown by the receipt of Lake & Co., dated the 15th day of April 1841, that 

 [*378]  the appellees' notes in their favor, or endorsements of Lake & Co's own paper of various dates and sums, in the aggregate amounted to nearly $ 22,000; all of which notes and endorsements were granted for Lake & Co's sole use and accommodation; and proved that the notes, or the renewals of such as were stated in the receipt as being [**9]  in the hands of the Union Bank of Baltimore, continued to be so held at the time of the sale of the Memphis bank stock. The appellants then proved, that they had stopped payment sometime prior to the sale of the stock; and also, that prior to, and up to the time of the trial, one of the appellees was a director of the Union Bank, and knew and approved of every step taken by the bank in regard to the liabilities of Lake & Co., and especially of the arrangement of the 14th of June 1843, and the sale of the 9th of September following.
On this state of case, the appellants submitted two prayers to the court, both of which were rejected; the appellees, also, offered two prayers, the first of which was rejected, and the second granted. Both parties appealed; but inasmuch as the appeal of the appellees in this case has since been dismissed, it is not necessary we should review the action of the court below in regard to the first prayer of the appellees.
The theory of the prayer, granted by the court on behalf of the appellees, is, that if the jury should believe the facts, which we have cited from the record, then the appellees were entitled to recover the amount of the note and acceptances [**10]  sued on with interest, less the proportion to which the same would be entitled, of the sum of $ 2243, proceeds of the sale of the Memphis Bank stock, having regard to the entire debt due the bank by Lake & Co. at the time when such surplus was paid by the Union Bank to the appellees, and the note and acceptances transferred to the latter.
The first prayer of the appellants is basedupon the ground, that if the jury should believe that when the bank received the instructions of Lake & Co., of June 1843, Erskine and Eichelberger's liabilities to the bank were insecure, and in concert with the appellees, adopted the arrangement of the 26th of August 1843, as a means whereby the said bank should be 

 [*379]  saved harmless in regard to said liabilities, and that Erskine and Eichelberger received no advantage from the sale of the Memphis bank stock, then, there could be no recovery in this action. The second prayer of the appellants declares, that if the jury should find from all the evidence, that the arrangement of August 1843, between the appellees and the Union Bank of Baltimore, was adopted to avoid and evade the contract of the 13th day of February 1843, and that of June of the [**11]  same year, then such arrangement was tortious and wrong, and conferred no title on the appellees to the note and acceptances sued upon.
The ruling of the court in regard to the first prayer of the appellees, the appeal from it having been dismissed, is not now before us; but if it were we would have no hesitation in saying it was erroneous. The cases cited at the bar are explicit and direct to the point contained in that prayer. They clearly establish this principle, that where a consignee, or remittee, receives goods, or money, with instructions to hand them or pay it over to a third party, such third party cannot maintain either trover, or an action for money had and received, until the consignee or remittee does some act by which he binds himself to such third party; without such act, there is no privity of contract between him and the third party, the title still remaining in the consignor or remittor. The cases we refer to on this point are the following: Williams vs. Everett, 14 East., 582. Grant vs. Austen, 3 Price, (Excheq. Rep.,) 58. Brind vs. Hampshire, 1 Meeson & Welsby 365.  Tiernam vs. Jackson, 5 Peters 580.
It is impossible [**12]  for us to perceive any wellfounded objection to the instruction which the court did give. If the appellants have any ground whatever of defence it is derived from the letters of Lake & Co. to the Union Bank of Baltimore, of dates 13th of February 1843 and June 14th of the same year. The Memphis Bank stock was pledged specifically for an obligation of Lake & Co's for $ 8100. The letters of February and June, can bear no other construction than that, after that debt was paid, the surplus should be applied to other liabilities of Lake & Co. The appellants cannot contend 

 [*380]  that it was to be applied exclusively to their liabilities. The letter of June clearly confines the application of the surplus to any paper "drawn or endorsed by W. F. and A. Murdock." But it was said at the bar this note ought to be construed in connection with the one of February. If this be done the appellants have no right to complain of the court's instruction. What does that note say? It does not appropriate the stock as a security, exclusively, for the liabilities of Erskine and Eichelberger; on the contrary, it appropriates it "as a general collateral security for all our liability"  [**13]  to the bank, "at present existing, or which may be hereafter incurred." The instruction of the court is in strict conformity with this direction; it allowed the appellants an abatement in the proportion which their indebtedness to the bank stood to the fund to be applied, and the whole amount of liability of Lake & Co.
The first prayer of the appellants, which the court rejected, only denied the right of the plaintiffs to recover, provided the jury found they did not derive "any advantage" from the arrangements made between the Union Bank and Lake & Co. The instruction given by the court did allow them as great an advantage as that given to any other person or persons who had become liable to the bank for Lake & Co; and they realized this advantage in the verdict of the jury. It follows necessarily, if these views be correct, the prayers on behalf of the appellants were properly rejected. We affirm the judgment.
Judgment affirmed.
TUCK, J., dissented.  

10 of 47 DOCUMENTS 

JOHN H. THOMAS vs. WILLIAM E. BARBER and SAMUEL W. BARBER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 380; 1857 Md. LEXIS 2 

JUNE, 1857, Decided 

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

This was a scire facias under the mechanics' lien laws, issued on the 11th of April 1855, upon a claim filed the day preceding, by the appellees against the appellant and Jacob F. Kridler, for materials alleged in the claim to have been furnished to Kridler as contractor, builder and architect, of a house erected on a lot, of which the appellant was at the time of their delivery the owner or reputed owner. The writ, return, advertisement, claim, pleas and issues, are fully stated in the opinion of this court.

Exception. The proof in the case shows, that Kridler was building three houses adjoining each other, one of which is the house in question; that the lumber was obtained for these three houses from various places, and all of it was usually dropped at defendant's house, and was used indiscriminately for all three; that the items of which this claim is composed, were sometimes ordered by Kridler and sometimes by his hands. The plaintiffs then offered in evidence the notice to the appellant, which is set out in the opinion of this court, and also a deed from Kridler and Israel to the defendant, dated the 20th of November 1854,  [**2]  of the leasehold interest in the lot sought to be charged with the lien. The defendant then offered in evidence an agreement between himself and Kridler, dated the 11th of July 1854, by which Kridler contracted, for $ 6000, to build the house for him, and convey or have conveyed to him the lot free of incumbrances, except the ground-rent, and also proved the lease of the lot by Williams and wife, to Kridler, dated the 19th of September 1854, and the assignment thereof by Kridler to Israel, dated the 20th of October 1854, subject to the defendant's title, and with the agreement on the part of Israel, to convey the property to the defendant, on repayment of the sum of $ 2500, for which Kridler had pledged it to him. It was admitted by the plaintiffs, that it was their invariable custom to settle with Kridler on the first of July and January, every year, for purchases made by him during the previous six months, and that on the 1st of July 1854 he gave them his note for $ 518.85, in pursuance of that custom; which, however, has not been paid. The defendant then offered the following prayers.

1st. (This prayer is fully stated in the opinion of this court.)

2nd. That if the jury [**3]  find that Kridler executed the contract given in evidence by defendant, the plaintiffs are not entitled to recover for any materials which they may find to have been furnished to Kridler, on account of the property in question, previous to sixty days before the 5th of January 1855, provided they find there was no special contract between the plaintiffs and Kridler, for furnishing materials generally to the house, but that the same were sent for, and furnished from time to time, as the state of the job required.

4th. That if the jury believe from the evidence, that the materials claimed for, were furnished on the individual credit of Kridler, and not on that of the house in question, then the plaintiffs are not entitled to recover.

5th. That in order to entitle the plaintiffs to recover in this action, the jury must first find that the materials were furnished on the credit of the house in question, and that such was the understanding at the time they were furnished.

The court, (PRESSTMAN, J.,) granted the fourth prayer, with this modification; "but that the jury are not at liberty to infer, that the note offered in evidence, and given by said Kridler, was a waiver of [**4]  the lien of the plaintiffs, unless they shall also find that the said note was paid," and rejected the others. To this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed, without a procedendo.  

HEADNOTES:

Where a lien claim as filed, the scire facias, and the sheriff's published notice, all name the defendant as owner or reputed owner, and another party as contractor, builder and architect, to whom the materials were furnished by the claimants, the defendant must in such a case be regarded as owner, whether so in fact or not, and the claimants cannot recover, unless they have given him the notice required by the lien laws.

A notice to the owner, which merely states the intention "to claim the benefit of the lien, provided" by the lien laws, "for materials furnished and work done, for and about the erection and construction" of the described building, saying nothing of the nature and kind of materials, nor of the amount claimed, and making no reference to a claim filed, is not a sufficient notice under the lien laws.  

COUNSEL:
S. T. Wallis for the appellant, argued:

1st. That the contract for furnishing the materials, having been made with "a contractor or builder," the lien cannot be affixed to the defendant's property, without the notice required by the acts of 1838, ch. 205, sec. 9, and 1845, ch. 176, sec. 1. Whether he was owner in point of fact or not, he was so for the purposes of this case. The claim, the scire facias, the notice, all allege that he was the owner, and that the materials were furnished to a contractor. The testimony shows the same fact. He was the equitable owner, in point of fact, from the date of his contract with Kridler, on the 11th of July 1854. If, therefore, the acts of Assembly require notice to the party, who was the owner at the time the lien was attempted to be enforced, and who was the equitable and "reputed owner" all the time, then Thomas was the proper person to whom the notice was to be given. 7 Md. Rep., 315,  [**5]  Mills vs. Matthews. But, as has been already said, the scire facias and the notice, treat him as owner or reputed owner, and there can be no recovery except upon proof that all the formalities required in the case of an owner or reputed owner, have been strictly complied with as to him. The plaintiffs have so put their own case. The notice to Thomas was not sufficient. The act of 1838, ch. 205, sec. 9, provides, that the party furnishing materials, shall not be entitled to a lien, when his "contract" for furnishing them was made with a contractor, unless he shall give notice of the "same," that is, of the contract to the owner, and "that he intends to claim the benefit of the lien." No notice of the contract was given, or of any thing from which it was possible for Thomas to learn what the contract was. The act of 1845, ch. 176, sec. 1, provides, that in a similar case, the claimant shall not be entitled to a lien, "unless within sixty days after furnishing such work or materials, he shall give notice of the same," (that is, notice of the furnishing of such materials,) "and of his intention to claim the benefit of the lien." Both acts require notice of two things. Thomas had notice [**6]  but of one, viz., their intention to claim the benefit of the lien. There is nothing from which he could learn the nature of the contract, to which he was a stranger, the kind and character of the materials, the amount due for them, or any thing else he was entitled to know; nothing to enable him to retain in settlement with Kridler, as by the act of 1845, ch. 287, sec. 8, he was entitled to do, the amount for which he might be made responsible to the claimants. The lien had not then been filed to come in aid of the notice and supply defects. It was not filed until the 10th of April, three months afterwards. There is no other proof when the notice was served, than that the endorsement says, the 5th of January. Sec. 11 of the act of 1838, ch. 205, prescribes, what the lien-claim must contain; the nature or kind of work done, and the kind or amount of the materials furnished, and the time when they were furnished. Yet in a case in which the letter of the law was complied with, and all this information given, the Court of Appeals say its spirit was not fulfilled; he must not only state the amount claimed, but must give a bill of particulars, whereby all who may be interested in the premises [**7]  can ascertain, not only the amount demanded but the correctness and reasonableness of the demand. The items must be furnished, in order that persons interested may know for what services and materials the sum alleged to be due is claimed, and thus have an opportunity of proving the injustice or the extravagance of the demand. 6 Gill, 27, Carson vs. White. If a stranger to the contract is entitled to this information from the claimant, he is surely equally entitled to it in the notice, when no claim has been filed, and there is no other source from which he could learn it. For these reasons the appellant insists, there was no sufficient notice to bind him as owner, and that the court, therefore, erred in refusing his first prayer.

Cornelius McLean and George H. Williams for the appellees, argued:

1st. That the ruling of the court below upon the first prayer was correct. The evidence shows that Kridler was owner, and as such contracted for the materials, and no notice was necessary to be given to Thomas in any event. He bought the house from Kridler as its owner, after the delivery of these materials, and was bound to know that a house in progress of erection was responsible [**8]  under the lien law. He affirms Kridler to have been such owner, by receiving a conveyance from him, and there is not a particle of evidence in the cause, to show that Kridler was at any time the contractor or builder of Thomas. His agreement was to sell his own house to Thomas, when he had finished it. If that be so, then the notice to Thomas was mere surplussage, only given for abundant caution, and a defective notice to one not entitled to any notice at all, cannot vitiate a claim properly preferred against the house, and against the person truly liable; and for a like reason, the addition of the name of Thomas in the claim as filed, cannot be a fatal defect, if indeed it be a defect at all. Further, this is a proceeding in rem, and the scire facias either brings in the true parties, or concludes the property by judgment rendered, and had it turned out that neither Kridler nor Thomas were owners, still the claim was sufficiently filed to bind the property, if either was the owner or reputed owner, which is all that the act requires. The jury may have found that Kridler was the owner, and no notice necessary, and the wording of the prayer, that the plaintiffs were not entitled to [**9]  recover, by reason of a defective notice to Thomas, excluded the jury from finding that Kridler was the owner, and that the notice was otherwise sufficient, or in fact that no notice at all was necessary; and also excludes from the consideration of the jury the first and third issues, which do not at all involve the question of notice, but only the furnishing of the materials and the sufficiency of the claim of lien. And the prayer assumes, that in filing the claim, the law requires the claimant, at his hazard, to ascertain the true owner, and so much of the law as provides for filing it against the reputed owner would be repealed. The act evidently makes the true description of the lot when the claim is filed, and when the scire facias is published, the important matter, and in this case in which Kridler was at the outset the owner without a proper title, and subsequently became contractor to finish, demonstrates the propriety of this construction of the law.

2nd. Assuming that Kridler was contractor and builder, the notice, so far as time is concerned, was sufficient. It was within sixty days after furnishing the materials. November 17th was the date of the last delivery, and [**10]  January 5th was the date of the notice. In substance it was sufficient, because the lien law only requires, that the particulars should be filed in the clerk's office, 6 Gill, 17, Carson vs. White. The act of 1845, ch. 176, sec. 1, does not entitle the owner to notice of any thing, but that the benefit of the lien is intended to be claimed, and that the materials have been furnished under contract to the contractor. It does not, nor does any act, provide that the particulars are to be furnished with the particularity required when the claim is lodged in the clerk's office, and the court therefore was not in error in refusing the first prayer. The second section of the act of 1845, draws a distinction between giving notice, and the filing of a claim or statement.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*386]  ECCLESTON, J., delivered the opinion of this court.
The scire facias in this case issued from the Superior Court of Baltimore city, for the purpose of enforcing a claim under the lien laws. The writ recites, that on the 10th of April 1855, William E. Barber and Samuel W. Barber filed a claim in the said court,  [**11]  "against Jacob F. Kridler and John H. Thomas, for the sum of $ 95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street in said city, with a depth of about fifty-three feet, and on the lot whereon said tenement is erected, and the ground adjacent thereto and used therewith, of which the said John H. Thomas was the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber, to the said Jacob F. Kridler, as contractor, builder and architect."
The writ was issued on the 11th of April 1855, and on the return day the sheriff made the following return:
"Copy served on John H. Thomas, defendant in possession, and summoned. Non est, Jacob F. Kridler; also advertised 

 [*387]  according to law, as per advertisement hereto annexed. (Signed,) Samuel Hines, sheriff."
The advertisement states the issuing of the writ, describing the property and the lien-claim as set forth in the scire facias, calling Thomas "the owner, or reputed owner;" and stating the lumber to have been sold to Kridler,  [**12]  as contractor, builder and architect." It then gives notice to all claimants and persons interested to be and appear in the court, "to show cause, if any thing they know or have to say, why the said sum of money above named should not be levied of the said buildings to the use of the said William E. and Samuel W. Barber, according to the form of the act of Assembly in such case made and provided."
Thomas appeared and filed three pleas:
1st. That the materials were not furnished, and that the sum of money was not due and unpaid as alleged.
2nd. That the contract for furnishing the said materials was made with an architect, builder, or other person than the owner of the lot on which the building was erected, and that the plaintiffs did not, in manner and form as required by the acts of Assembly in such case made and provided, give notice of the same, and of their intention to claim the benefit of the alleged lien.
3rd. That no lawful sufficient claim of lien was filed as required by the acts of Assembly.
Upon issues based on these pleas the cause was tried.
The lien-claim, as filed, does not appear in the record, but, by agreement, is to be used as if it had been inserted. It is [**13]  as follows:
"William E. Barber and Samuel W. Barber, vs. Jacob F. Kridler and John H. Thomas.--Mechanics Lien.--In the Superior Court of Baltimore city.
William E. Barber and Samuel W. Barber, of the city of Baltimore, Maryland, claim a lien for the sum of $ 95.31, on a three-story brick tenement, with a three-story back building, twenty-two and-a-half feet front, fronting on the south-west side of McCulloh street, first house north-west of Hoffman street, in said city, with a depth of about fifty-three feet, and 

 [*388]  on the lot whereon said tenement is erected, and the ground adjacent thereto, and used therewith, of which the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner, for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob F. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times stated in the account hereto annexed and filed herewith.
MCLEAN & WILLIAMS, Attorneys for Claimants.
Mr. Jacob F. Kridler and John H. Thomas, Bot. of Barber & Brother.

________________________________________________________________________________

  1854.	
May   25.--625 ft. 3x5 w. pine, 20.2 1/2,	$ 15 63	
   Hauling,	37	$ 16 00	
July  11.--1080 ft. 3x9 hemlock, 16.1 3/4,	18 90	
   Hauling,	50	19 40	
  "   12.--1080 ft. 3x9 hemlock, 16.1 3/4,	18 90	
   Hauling,	50	19 40	
Aug.  15.--208 ft. 3x4 w. pine, 26.2 3/4,		5 72	
Sept. 12.--254 ft. 4x4 cullings, 2,	5 08	
   960 ft. 3x4 hemlock, 16.1 3/4,	16 80	
   Hauling,	50	22 38	
Nov.  17.--159 ft. 4x4 panel, 4 1/2,		7 16	
Oct.  25.--1500 ft. laths, w. p.--Jacob cart, 37 1/2,		5 25	
		$ 95 31	
________________________________________________________________________________

 [**14]  
Received to be recorded 10th day of April 1855. Same day recorded and examined,
Per, EDWARD DOWLING, Clerk."
On the 5th of January 1855, the following notice was served upon the present appellant:
"John H. Thomas, Esq.--Sir, You are hereby notified, that we intend to claim the benefit of the lien provided by acts of Assembly, for materials furnished, and work done for and about the erection and construction of a certain three-story building, situate on the westwardly side of McCulloh street, being the first house north-west from Hoffman street, in the 

 [*389]  city of Baltimore, of which Jacob F. Kridler was the architect, contractor and builder, and you the owner, or reputed owner.
Very respectfully yours, &c.,
BARBER & BRO., Lumber Merchants."
"Baltimore, Dec. 28, 1854."
Inasmuch as our decision is based upon the proceedings already mentioned, a further statement of the evidence contained in the bill of exceptions is deemed unnecessary.
At the trial the defendant submitted four prayers, all of which, as presented, were refused; but the court granted the third, (marked 4th,) with a qualification.
The verdict and judgment being in favor of the plaintiffs, the defendant [**15]  appealed.
The first prayer asks the court "to instruct the jury, that if they find that Kridler executed the contract given in evidence by the defendant, then the notice to the defendant, offered in evidence by the plaintiffs, is not sufficient to entitle the plaintiffs to the benefit of a lien against the defendant, as owner of the property in question, and that the plaintiffs are therefore not entitled to recover in this action."
For the purpose of giving effect to a claim, under the lien laws, if the contract for furnishing materials shall have been made with "any architect, builder or other person, except the owner or owners of the lot upon which the building may be erected, or his, her or their agent," it is necessary that, within sixty days after furnishing such materials, notice thereof, and of the intention to claim the lien, shall be given in writing, by the claimant, or his agent, "to the owner or owners, or agent, if residing in the city or county of Baltimore." See the Acts of 1838, ch. 205, sec. 9; 1845, ch. 176, sec. 1, and 1845, ch. 287, sec. 8; also the case of Hess & others, vs. Poultney & Brown, Ante, 257.
In prescribing the form [**16]  of the claim to be filed, the 11th section of the first act directs, that it shall set forth "the name of the claimant, and of the owner, or reputed owner, of the building, and also of the contractor, architect or builder." And in reference to a notice by publication, directed by the 17th section of the original act, the 9th section of 1845, ch 

 [*390]  287, requires such notice to specify the name of the owner, or supposed owner, of the building, and of the contractor, if any, at whose instance the materials were furnished.
The notice to Thomas--the lien claim as filed--the scire facias--and the sheriff's published notice--all name Thomas as "owner, or reputed owner," and Kridler as "contractor, builder and architect." And the lien-claim not only thus describes those parties, but says, "the said John H. Thomas was, at the time of the delivery hereinafter mentioned, the owner, or reputed owner," of the property designated as that on which the lien is claimed, "for lumber sold and delivered by the said William E. Barber and Samuel W. Barber to the said Jacob F. Kridler, as contractor, builder and architect, of the kind, at the prices, and delivered at the respective times [**17]  stated in the account hereto annexed and filed herewith."
With such proceedings before us, so far as this case is concerned, we must regard Thomas as owner, and Kridler as contractor, builder and architect. This being so the plaintiffs were not entitled to recover under this scire facias, unless notice was given to Thomas according to the requirements of the acts which have been referred to, and this we think has not been done.
The claim was not filed until the 10th April 1855; the notice was given on the 5th of January preceding, merely stating an intention "to claim the benefit of the lien provided by the acts of Assembly for materials furnished, and work done for and about the erection and construction of a certain three-story building," &c. It says nothing as to the nature or kind of materials furnished or work done, leaving the owner entirely without information in regard to the amount intended to be claimed.
The act of 1845, ch. 176, sec. 1, requires in such a case as this that a claimant shall, within sixty days after furnishing work or materials, "give notice of the same, "(that is, notice of the furnishing of such work or materials,)" and of his intention to [**18]  claim the lien." In a case where the notice makes no reference to a claim filed, and could make none in consequence of there being no such claim on file, how can such a notice as 

 [*391]  the present be considered a compliance with the act? What useful information did it furnish in reference to the amount of the claim?
The 8th section of chapter 287 of the same session, confirms us in the belief, that this notice is not such as the Legislature designed it should be. That section gives the owner who receives notice of a lien claimed for materials, the right to retain out of the cost of the building, as between himself and the contractor, "the amount which he may ascertain to be due to the party giving such notice." This provision is an equitable one, and designed for the protection of the owner. Requiring such a notice to be given as will render the law practically useful to him, imposes no hardship upon a material man or mechanic, whilst it only secures to an owner what the Legislature evidently intended for his benefit.
As the notice received by Thomas says nothing in regard to the amount claimed, it gave him no information in reference to what amount he would be entitled to [**19]  retain out of the contractor's claim.
Like the case before us, the scire facias, in Hess & others, vs. Poultney & Brown, was issued upon a claim for materials. There the want of a proper notice to the owners was held to be a defect, which so effectually defeated the claim that the court did not award a procedendo. And considering the present notice defective, we think the first prayer of the defendant should have been granted. The judgment must therefore be reversed, and no procedendo ordered.
This renders an examination of the other prayers unnecessary.
Judgment reversed, without a procedendo. 

11 of 47 DOCUMENTS 

STATE OF MARYLAND vs. THE MAYOR and CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 504; 1857 Md. LEXIS 15 

JUNE, 1857, 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.,) dismissing the petition of the State, filed in the case of Elizabeth Smith vs. John S. Gittings, and others, pending in that court, in which certain property of Lambert S. Norwood, late clerk of the court of Common Pleas, conveyed to John S. Gittings, in trust, to indemnify the sureties upon his official bond as clerk, had been sold and the proceeds brought into court for distribution. This petition claimed for the State the entire balance of the fund in the hands of the trustee, amounting to $ 8097.73, in part payment of two judgments, one for $ 2992.42, and the other for $ 14,684.67, recovered by the State upon the bonds of Norwood, as clerk. This claim was resisted by the Mayor and City Council of Baltimore, who alleged, that Norwood was indebted to the city of Baltimore in the sum of $ 18,000, for which they claimed that this fund was partially responsible, and for which they had instituted suits upon Norwood's bond. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and a final decree passed.  

HEADNOTES:

Where the State and other parties are creditors under the same bond of the same party, who has conveyed his property by a deed of trust, to indemnify his sureties on the bond, the State, by virtue of its prerogative, is entitled to priority of payment out of the proceeds of the property sold by the trustee in the deed under the direction of a court of equity.  

COUNSEL:
Chas. J. M. Gwinn for the [**2]  State, argued:

1st. That the court below erred in dismissing the petition of the State, upon the ground that the city had brought suit on the bond of 1851, because the deed of trust executed by Norwood to Gittings, in September 1853, was made to secure the sureties upon the bond of June 1853, and the city had no interest whatever, arising out of the bond of 1851, in the distribution of the fund held by the trustee under this deed, made to secure the sureties on the bond of 1853.

2nd. That the court erred in dismissing this petition upon the ground that suit had been entered in the name of the State for the use of the city, because it was apparent to the court from the copy of the bond filed in the case, and referred to in the answer of the city to the State's petition, that the city had no claim, either at law or in equity, against Norwood, which they could successfully prosecute, for the reason that the bond of 1853 was not stamped, and, therefore, no recovery could be had upon it by a suit in the name of the State for the use of the city. 9 Gill, 105, State vs. Milburn. It is submitted, that a court of equity cannot proceed upon the hypothesis that there is a contest at [**3]  law in regard to the liability of a party upon a bond, when the bond in proof before the court discloses, by reason of its want of a stamp, that it cannot be enforced by the city claiming under it, either at law or in equity. For an analogy, see Owens vs. Collinson, 3 G. & J., 25. The city ought only successfully to have resisted the State's petition in a case where its equitable claim to the action of the court was founded upon the theory, that it had a prima facie case at law. But where a court of equity perceives that its jurisdiction is invoked in aid of a proceeding at law, and the facts, shown as the basis of such prayer, demonstrate conclusively that there is no legal right in the party claiming such interference, it is a manifest denial of equity to all other persons interested, to consider such application, or to act with reference to it in any manner.

3rd. That the court erred in its action, because the city, having a remedy at law upon the bond of 1853, if any legal rights under this bond were possessed by the city, should have been remitted to the pursuit of such legal rights by the court, and should not have been received as a party to or considered in a proceeding [**4]  which was for the benefit of the cestui que trusts of the deed of September 1853, against the will of all or any of those cestui que trusts.

4th. The proceeding in the court was for the protection of those who claimed rights in the property conveyed by Norwood to Gittings, and for the safety of Gittings, as trustee in administering his trust; and the court, in ordering the administration of the trust, ought to have followed that priority among those claiming an interest in the fund, which is recognised by the law. 1 Story's Eq., sec., 553. And for this reason, if it were conceded, for the sake of the argument, that the city had any rights under the bond of 1853, its claim could not interfere with the right of the State to be first paid the debt due it, which had been sued for on this bond, and for which judgment had been recovered. The claim of the State was a lien upon the real estate of Norwood, in the hands of Gittings as trustee, and upon the proceeds of that estate in his hands: (Act of 1778, ch. 9, sec. 6; 1 Bland, 443, Jones vs. Jones; Ibid, 503, Hodges vs. Mullikin; 1 H. & J., 546, Davidson vs. Clayland;) and the State was entitled to priority of payment by reason of such [**5]  lien. The act of 1778, awards the priority to the State from the date of suit, except as against such liens as existed prior to suit brought by the State, and it is difficult to see why the claim of the city which was in no form a lien, either before the commencement of the suit brought by the State, or at the commencement of that brought in the name of the State for the use of the city, and for which no judgment had been recovered, could be set up by the court as entitled to be considered in the application of the fund, which was subject to the court's order, to the partial liquidation of the judgment obtained by the State.

5th. The court below was bound to recognise the claim of the State to priority in payment, when the lien of the State, prior to the claim of the city, was apparent in the cause. The prior right of the State to payment did not depend on the fact that the suit was on a bond made to the State, but on the fact recognised in the act of 1778, that it was for money due the State. The claim of the city, if it had any upon this bond, did not derive any preference from the character of the bond, but remained a private claim which relied upon the bond as an ordinary [**6]  cause of action. Nor was there any more force in the reason given in the order appealed from, that the safety of the trustee forbade the exercise of this legitimate authority of the court below. The trustee would have been as safe in paying the judgment claim of the State, as in paying under the order of the court any lien for materials furnished for the house of Norwood, which was conveyed to Gittings, as trustee. The claim of the State was as perfect to the fund, in preference to the alleged claim of the city, as was the right of the material men to the claim of the State before suit brought by the State.

6th. The court below erred in dismissing this petition, because it was in exact accordance with the deed of trust directing the property to be applied, to save harmless the sureties on the bond of 1853, and these sureties can only be saved harmless by appropriating the money derived from the proceeds of the property so conveyed and in court, to the satisfaction of liens thereon in their proper order, which order would apply the fund now in hand to the partial payment of the judgments of the State. If this court should be of opinion that, because of the transfer of all Norwood's [**7]  property to Gittings as trustee, and the subsequent administration of the fund thus acquired by the court below, the State was left remediless at law, to enforce either of its judgments, but that the proceeds in the hands of the trustee, are, for the reasons set forth, applicable to both judgments because of the priority of the State's claim, this court, for full relief, on hearing this appeal, ought to pass a decree, directing the court below to order payment by the trustee, out of the fund in his hands, of the first judgment in full, and the balance of the fund to the partial payment of the second judgment. Or if this court should be of opinion that the fund ought to be applied, under the deed of 1853, to the relief of the sureties, who are cestui que trusts under that deed, then it ought to order the court below to direct payment, by the trustee, of the sum ascertained by the Auditor's account to be in his hands for distribution, in partial payment of the judgment for $ 14,684.67, recovered by the State on the bond of June 1853.

Grafton L. Dulany for the City of Baltimore.

The answer, or rather the petition, of the Mayor and City Council of Baltimore, prays that the city [**8]  may be put upon an equality, as the creditor of Norwood, in the distribution of the fund arising from the sale of property, conveyed by him in trust to Gittings, with the State. The State, by its petition claims, that this fund should be applied primarily to the discharge of its debt, to the exclusion of all others, and for this pretension asserts its prerogative right and also its statutory preference, under the act of 1778, ch. 9, sec. 6. Assuming that the State and city are both creditors of Norwood, and also that each has an equal claim on his sureties, and that his deed to Gittings, was designed to indemnify his sureties against all damage they might sustain from the demands of the one as well as the other, the claim of the State to take the whole fund in the hands of the trustee, in satisfaction of its entire debt, to the exclusion of all participation in the same fund by the city, has no foundation in any principle either of law or equity.

It is admitted, that if the State had commenced suit against Norwood, before his deed to Gittings, it would have had the priority and preference, under the act of 1778, in the payment of its debt. But the deed was executed on the 26th [**9]  of September 1853, and no action was instituted against Norwood until the 7th of January 1854. Now at the time of the institution of the suit by the State, Norwood had no property, at least none which contributed to any portion of the fund now in court for distribution, because previously to that period, by a good and valid deed, founded upon a valuable and meritorious consideration, he had conveyed it all away. The preference of the State must have a legal existence. It can otherwise have none in equity, for there "equality is equity," a principle antagonistic to the State's claim. Here there can be no legal priority, since, by the words of the act of 1778, it could only attach to the property belonging to the debtor, on the day of the institution of the suit, but in this case no such preference could attach, for on that day the debtor had no property, having previously transferred it for the benefit of his sureties, which has been decided to be a valuable consideration. It is said, in the case of the State vs. The Bank of Maryland, 6 G. & J., 217, a deed made by an individual debtor, capable of taking the benefit of the insolvent laws, to a creditor or a surety, might be valid and [**10]  effectual to pass the property, and if so, why, in the present instance, did not the property pass to the trustee, by the deed of September 1853? And if it did pass, still to allow a preference to the State, would be to attach the right of priority, not to the property of the debtor but to that of other persons. It is no answer to say, that if preference be allowed to the State, under the circumstances of the case, the sureties will be protected as fully, as by any other mode of distribution of the fund, for still the legal ingredient, essential to the existence of a right of preference is wanting, viz: that the property at the time of the institution of the suit, must have belonged to the debtor. Nor will equity lay hold of any circumstances to create a preference where none exists, but in this respect reluctantly follows the law, and allows it, when legal, contrary to its own favorite maxim that equality is equity. Upon this question of preference, I rely upon the case in 6 G. & J., 205, above cited, as conclusively establishing the right of the city, to participate with the State in the distribution of the fund in the hands of the trustee.

As for the objection, that the city [**11]  had no claim at all because of the omission of the stamp upon the bond, it is unnecessary to inquire how far that would, at any time, have been requisite, since the act of 1856, ch. 352, makes all bills, notes, or bonds, drawn or executed previous to the act, as valid in law as though the stamp act had never been passed. This is a public law to which obedience is due, which the court will notice though not in the record, and which will avail to insure the defeat of the objection to the bond for want of a stamp. 1 Cranch., 110, United States vs. Schooner Peggy.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*509]  ECCLESTON, J., delivered the opinion of this court.
Lambert S. Norwood having been elected clerk of the Court of Common Pleas for the city of Baltimore, in November 

 [*510]  1851, gave bond to the State of Maryland, on the 29th of that month, in the penalty of £  5000, for the faithful performance of the duties of his office. On this bond Elizabeth Smith and J. Marbury Turner were sureties. Under the act of 1853, ch. 409, Norwood, as clerk, gave a new bond to the State, on the 29th of June, in the same year, in [**12]  the penalty of $ 50.000, on which Elizabeth Smith, J. Marbury Turner and J. Wesley Watkins, became sureties.
On the 26th of September 1853, Norwood executed a deed of trust to John S. Gittings, conveying a leasehold property therein described, and "all the real and personal estate which Norwood then possessed, and all choses in action, and all his rights, credits and effects, of whatsoever kind they might consist, and all his estate in expectancy, reversion and remainder." After reciting that the bond for $ 50.000 had been given, it is stated in the deed to be the design of the grantor, "more effectually to secure his said sureties on said bond, from any loss that might possibly occur from being on said bond." And the trust, as declared, gives to the trustee authority "to sell and dispose of all property, real and personal, on such terms and in such manner as may be legal and most conducive to the interests of those interested in the execution of this trust, and to collect and reduce into possession all choses in action, rights and credits, and the proceeds thereof to apply to pay any loss or losses that the aforesaid sureties on the bond of the said Lambert S. Norwood may [**13]  sustain, if such there be; or in case of any such loss being likely to occur, then to make such other disposition of the property, as in his judgment may be deemed best, to indemnify said sureties from any loss whatever."
On the 13th of November 1853, Elizabeth Smith, apprehending loss to herself and her co-sureties, exhibited her bill of complaint in the Circuit Court for Baltimore City. The object and design of which bill was, to get a decree for the sale of the leasehold property, or house and lot mentioned in the said deed, and all the other property thereby conveyed; and also that the court should take cognizance of the trust created by the deed, so that the same might be administered 

 [*511]  under the direction of the court, for the benefit of all who might be interested therein. The bill likewise contained a prayer for general relief. John S. Gittings, John W. Watkins, J. Marbury Turner, Lambert S. Norwood and others, were made defendants; all of whom consented, by their answers, that a decree for a sale should pass as prayed. Gittings, Watkins, Turner and Norwood, all admitting the facts stated in the bill to be true.
The court passed a decree, on the 27th of December [**14]  1853, for a sale as prayed, appointing John S. Gittings, trustee, to make the same, and directing him to bring into court the money arising on such sale, and the bonds or notes taken for the same, to be disposed of under the directions of the court. It was also ordered and decreed, that the said John S. Gittings should, in all things, proceed and act under the directions of the court, in the execution of the trust reposed in him by the deed from Norwood. The decree also authorised Gittings to apply for directions, from time to time, and reserved to the court the right to pass such orders and decrees respecting the trust, as might seem advisable and proper for the administration thereof, and the protection of the trustee. The decree, likewise, provided, that the parties, or any of them, might apply for such further decrees, or orders and directions, as might seem to them proper, reserving the right to the court to pass such as might seem necessary.
Under this decree, after giving bond as directed by it, Gittings, as trustee, made the sale of the leasehold property on the 18th of February 1854, which was reported by him, and on the 19th of May following the same was ratified.
In reporting [**15]  the sale he further reported, that he had received from Lambert S. Norwood the sum of $ 6506.34, to be applied by the trustee in accordance with the deed of trust filed in the cause; and the trustee prayed that the same might be distributed, under the directions of the court, in like manner as the proceeds of the sale of the leasehold estate were to be, or otherwise as parties entitled thereto might respectively establish their claims thereto.
The auditor made a report, including therein the amount for 

 [*512]  which the leasehold estate was sold, and likewise the sum of $ 6506.34, received by the trustee from Norwood; from which report it appeared, that after allowing costs, expenses and claims, entitled to preference, there remained a balance of $ 8097.73, subject to be disposed of by the court's direction. This report was made on the 13th of June 1854, and was ratified on the 30th of the same month.
On the 4th of January 1854, the State of Maryland instituted suits in the Superior Court for Baltimore City, upon the two bonds given by Norwood. And on the 29th of May following, a judgment, by confession, was entered in each case; that on the first bond being for $ 2992.42, and [**16]  that on the other for $ 14,684.67, with interest, from the 1st of December 1853, upon the principal of each judgment.
The State filed a petition in the circuit court, on the 13th of June 1854, in the case of Elizabeth Smith against John S. Gittings, Lambert S. Norwood, and Others, claiming any balance of the trust fund, remaining undisposed of, after the payment of any liens existing upon the leasehold property, prior to the institution of suits by the State.
On the 13th of June 1854, an order was passed, "That the matter of the within petition be set down for hearing on Monday the 20th inst., provided a copy of this order, and the said petition, be served on the solicitors for plaintiff and defendants, on or before the 16th inst."
Within due time, the solicitors of the respective parties admitted notice of the order and petition.
J. M. Turner filed an answer to this petition, in which he admits the matters and things charged therein, to be true, as to the indebtedness of Norwood to the State, and submits to such decree in the premises as may be right.
Elizabeth Smith, in her answer, says she believes the facts stated in the petition to be true, as to the bonds and judgments,  [**17]  but she does not know whether the amounts therein stated to be due on the several bonds are the true amounts or not, "nor is she advised that she is interested, in this case, in ascertaining whether they are correct or not; and she is perfectly willing that the funds now (then) in court, or to be brought 

 [*513]  into court, or in the hands of the trustee, or to be in his hands, should be applied as prayed." She further answers: "But this respondent has been informed and believes, that the said Lambert S. Norwood is charged, by the Mayor and City Council of Baltimore, with a default in the collection of some of the revenues of the city, which they claim to hold his bonds responsible for, and she avers that the said Mayor and City Council are interested in the disposition of the said balance, and she prays that they may have an opportunity of claiming the said balance, before it shall have been acted upon" by the court.
In the answer of John S. Gittings, he says, his report will disclose the amount of money then in his hands, and the amount of the proceeds of the sale of Norwood's house, for which he is willing to account when the same shall have been received, but he does not admit [**18]  that he has received the whole thereof. He admits the other facts stated in the petition, but further answering, "says, he has been informed and believes, that the Mayor and City Council of Baltimore claim the said balance, under the said bonds, for defalcations of the said Norwood, in making collections for them while clerk as aforesaid, and he therefore prays, before the distribution of the said balance, that notice may be given to the said Mayor and City Council, so that they may have an opportunity of setting up their claim in this case, and having the same adjudicated."
The court passed an order directing notice to be given to the Mayor and City Council; and on the 30th of June 1854, they filed what they called an answer to the State's petition, but which, with as much propriety, might be called a petition. In this they set out an alleged indebtedness to them, on the part of Norwood, as clerk, for moneys received by him for them, amounting to $ 18,000, for which they claimed the fund in court was partially responsible; in which answer they asked to be made parties to the suit, and that their claim might be audited, and distribution made to them upon equal terms with other creditors.  [**19]  They referred to both bonds, but without specifying the nature or amount of the claim under each of them; and filed with their answer an account marked "Exhibit Y," which is as follows:

 [*514]  "Statement of account.--Money due by Lambert S. Norwood, late clerk of the Court of Common Pleas, to the Mayor and City Council of Baltimore:

________________________________________________________________________________

To ordinary licenses under the act of 1782, received	
  by him, as appears by the books in the	
  office of the register of the city and in the	
  Court of Common Pleas,	$ 15,009 88	
To jail fees under the act of 1827,	1985 08	
	$ 16,994 96	
________________________________________________________________________________

Suits are now pending in the Superior Court to recover the above amounts."
With regard to the suits just mentioned, the following admission appears in the record: "It is admitted that a suit was entered in the Superior Court of Baltimore city, in the name of the State use of the Mayor and City Council, vs. Norwood and others, and a suit in the name of the Mayor and City Council of Baltimore, vs. Norwood and others, on his bonds as clerk of the Court of Common Pleas, for Baltimore city, at the May term 1854, and are on the trial calendar, for this term, (September 1854,) in said court.  [**20]  " The record does not show when or how those suits were terminated.
Subsequently to the filing of the answer and claim of the Mayor and City Council, J. M. Turner filed a further answer denying their right to be made parties, and also insisting that they had no claim, whatever, upon the trust fund.
The circuit court passed an order dismissing the petition of the State, from which this appeal is taken.
The order is in the following language:
"The petition of the State of Maryland, filed in this case, praying that an order may be passed to authorize the payment to the State, by the trustee, in the petition mentioned, of the fund now in his hands, after certain payments therein mentioned are made, having been considered, and it appearing to the court that certain suits are now pending on the bonds filed in this case against the principal and sureties in behalf of the Mayor and City Council of Baltimore, to recover certain sums of money for which it is alleged said sureties are liable to said city on said bonds, and the court being of opinion that it should 

 [*515]  pass no order such as is prayed in said petition, under which the said fund would pass from the hands of the trustee [**21]  pending the trial of said cases, and it is ordered and adjudged, this second day of December 1854, that the said petition be dismissed with costs."
The deed was designed to secure the sureties in the second bond, and as the claim of the State under that bond, and the judgment upon it, amounts to more than the balance of $ 8097.73 of the trust fund, subject to the court's order, it is certain the State can have no title to any part of that balance by virtue of any claim under the first bond. So likewise no responsibility of Norwood and his sureties, to the Mayor and City Council, under the first bond, (if any exists,) can give them a claim upon this balance of the fund.
If it should be conceded that the Mayor and City Council have a claim against Norwood and his sureties, under his second bond as clerk, on account of moneys collected by him for them, still the State's claim under that bond is entitled to such a preference as will exclude the city from any participation in the trust fund.
We need not inquire, whether the deed of trust prevented the suits instituted by the State from creating a lien upon the property conveyed by it; for, without any lien, the State may be entitled [**22]  to a priority or preference in payment, in such a case as this, according to the principle recognized in Smith, et al., vs. The State, in 5 Gill 45. There the court say: "The authorities, cited by the appellant proved that in such a case as the present, the State has no lien. None is claimed. A priority of payment over other debts, they also not being liens, is a very different thing; and we think a prerogative of the State."
Although in the State vs. The Bank of Maryland, 6 G. & J. 205, the preference claimed by the State was defeated, by reason of the deed of trust, it does not necessarily follow that the result must be the same here. That case is very different from this. There the cestui que trusts, under the deed, were creditors, generally, of the bank; and it did not appear that such creditors, or any of them, were debtors to 

 [*516]  the State, as sureties for the bank, or debtors to the State in any other respect, and as such, having or claiming an interest in the property transferred for their use, by the deed, or in the proceeds thereof.
Here the cestui que trusts, who have any interest in the fund now in controversy,  [**23]  are debtors to the State, and are claimed to be debtors to the city also, and with reference to the question now before us, must be so considered, for otherwise there is an end of the city's claim by the terms of the deed itself, without a necessity for the State to rely upon the doctrine of preference. Both creditors are therefore claiming through the grantor in the deed, and through his sureties the cestui que trust, in the deed; and under the same bond.
If, in view of the facts, irrespective of the State's prerogative of priority, the city would have a claim upon the fund, the State would certainly have one quite equal in grade to that of the city. This being true, then if the State's prerogative is taken into consideration, the priority given by it must exclude the city, where there is not enough to overpay the State. And as the present fund is not sufficient to pay the judgment of the State upon the last bond, the Mayor and City Council can have no right to a portion of the balance in dispute.
The judgment of the State shows the amount recovered therein under the second bond; and the right of the State to have the trust fund applied toward the payment of its claim, has not [**24]  been denied by the grantor in the deed of trust, by the trustee, or by either of the cestui que trusts, except in so far as the answers of John S. Gittings and Elizabeth Smith, make reference to an alleged claim on the part of the Mayor and City Council, and suggest the propriety of their being heard, so that their claim might be presented and adjudicated before the fund should be disposed of by the court.
They had an opportunity of being heard, and they did exhibit their claim, which, in our opinion, does not entitle them, in opposition to the State, to participate in the disputed fund; which claim, so exhibited, on its face shows that suits to recover the same were pending in the Superior Court, and these suits are, evidently, the same to which reference is made in the order dismissing the State's petition.

 [*517]  Believing, as we do, that the claim on which these suits were based cannot entitle the city to any portion of this fund, but that the State should have the whole, the order dismissing the petition must be considered erroneous. We will therefore pass a decree reversing the decision below, and ordering the costs in both courts, to be paid out of the balance of [**25]  said fund, and the residue thereof to be paid to the State, in part payment of its judgment on the second bond.
Order reversed and a final decree passed. 

12 of 47 DOCUMENTS 

ISAAC HOSHALL vs. HENRY M. HOFFACKER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 362; 1857 Md. LEXIS 44 

DECEMBER, 1857, Decided 

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

In this case the appellees had filed a petition, under the act of 1853, ch. 220, praying the county commissioners of Baltimore county to open a certain public road. The commissioners, in conformity with the provisions of that act, appointed examiners, who reported in favor of the opening of the road. The appellant, and others, then filed counter-petitions, or objections to the report. These objections were overruled by the commissioners, and the report confirmed. From this decision of the commissioners, the appellant appealed to the circuit court for Baltimore county, and a transcript of the record of the proceedings of the commissioners was transmitted to that court, where the parties appeared. The appellant then suggested that he could not have a fair and impartial trial in that court, and prayed that the case might be removed to an adjoining county for trial. Upon this suggestion the court below (PRICE, J.,) passed an order refusing the application, "being of opinion that the court has no power to order the removal in this case." From this order the present appeal was taken.  

DISPOSITION:
Order affirmed, and procedendo ordered.  

HEADNOTES:

Under the provisions of the constitution and laws of this State, relating to the removal of causes for trial, the circuit courts have no power to remove causes pending before them on appeal. 

COUNSEL:
E.  [**2]  G. Kilbourn for the appellant, insisted that, under the constitution and laws, the court below had the power to order the removal, as prayed, and referred to Declaration of Rights, art. 3; Constitution, art. 4, sec. 28; Acts of 1854, ch. 325, 1849, ch. 518; 2 Md. 274, Negro Jerry, et al., vs. Townshend; and 5 Md. 370, Wright vs. Hamner.

J. Nevitt Steele for the appellee, argued, 1st, that the jurisdiction of the court below, in this case, under the act of 1853, ch. 220, being special and appellate, no appeal from its decision lies to this court; 9 Gill 93, Webster vs. Cockey; 8 Md. 5, Lammott vs. Maulsby; and 2nd, that the order appealed from was properly passed, because the court below had no power, under the constitution and laws of this State, to order the removal of the cause, as prayed.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*363]  ECCLESTON, J., delivered the opinion of this court.
The 28th section of the 4th article of the constitution provides for removals "in all suits or actions at law, issues from the orphans court, or from any court sitting in equity, in petitions for freedom, and in [**3]  all presentments and indictments" then pending, or which might be pending at the time of the adoption of the constitution by the people, or which might be thereafter instituted in any of the courts of this State, having jurisdiction thereof. And the classes of cases thus enumerated, are the same as those mentioned in the 1st section of the act of 1854, ch. 325.
When the application for a removal was made in this case, it was pending in the circuit court for Baltimore county, by virtue of an appeal from a decision of the county commissioners, 

 [*364]  taken under the 13th section of the act of 1853, ch. 220, upon an application for a public road.
Neither the constitution nor the act of 1854, in express terms, confers the right of removing any case from one county to another, when the same is pending upon an appeal. Nor have we met with any decision, or even heard of any practice, in any part of the State, in affirmance of such a right, either as having existed under our former constitution and laws, or as now existing under our present system. But the absence of a sanction for the right by any decision or practice, although entitled to some consideration, is by no means [**4]  the only ground on which the decision below should be sustained. For, in our opinion, according to the proper construction of the constitution and of the law, they are designed to provide for removing cases from tribunals exercising original and not appellate jurisdiction.
In reference to such an appeal as the present, the act of 1853 provides, that it shall be determined by the judge of the circuit court, or by a jury, at the option of either party.
The 2nd section of the act of 1854, which authorizes a second removal, has no reference to appeals, as it relates only to cases which may be removed under the provisions of the first section.
We think the judge below decided correctly, and therefore his order will be affirmed.
Order affirmed, and procedendo ordered. 

CONCURBY:
LE GRAND 

CONCUR:

LE GRAND, C. J.--Although I have considerable doubt as to the correctness of the decision as pronounced by my brothers, I assent to the filing of the opinion, believing that where my convictions are not decided, it is better I should unite with the rest of the court, so that the law may be settled.  

13 of 47 DOCUMENTS 

HENRY TRIEBERT vs. JOHN BURGESS and others, and JOHN BURGESS and others vs. HENRY TRIEBERT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 452; 1857 Md. LEXIS 55 

DECEMBER, 1857, Decided 

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

In this case, Triebert, the defendant below, appealed from an order granting an injunction and appointing a receiver, upon a bill filed against him by Burgess and others, and the latter, the complainants below, appealed from an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver's appointment, passed on motion of the defendant, after he had filed an appeal bond upon his appeal from the previous order.

The bill filed by Burgess and others, partners, under the firm of Burgess, Dale & Goddard, on the 10th of November 1857, alleges, that upon the application of Triebert, who is, and for some time has been, engaged in the business of buying and selling china, glass and queensware in Baltimore, the complainants, who are importers of such goods in New York, sold and delivered to him, from time to time, large quantities of goods, of which an account is filed as an exhibit with the bill; that on the 29th of September 1857, a considerable amount, though not the whole, being then due for the goods, and the complainants pressing for payment, and Triebert, not having or possessing [**2]  the necessary means then in his hands, proposed to complainants to give them a bill of sale of all his stock in trade in Baltimore, to secure them, by way of mortgage, as well his matured as his maturing indebtedness, and also the further sum of $ 900, to be lent and advanced him by them, provided they would lend and advance him $ 900 in cash, which proposition complainants agreed to and accepted, and on that day paid to Triebert the stipulated sum of $ 900, in consideration of which he had promised to give them his bill of sale, by way of mortgage, of his stock in trade, and was bound by it; that the greater part of the indebtedness of Triebert to them, for his purchases as well as this $ 900, is due, with the exception of $ 200 paid them; that they have applied to him to execute the mortgage he had stipulated to make, but he has neglected and refused to do so.

The bill further charges, that the stock in trade of Triebert, consisting of china, glass and queensware, in the store occupied by him, on Baltimore street, is the same (except where he may have sold part) which was held by him at the time of his aforesaid promise, and which he then undertook to convey to complainants [**3]  as security; that he not only refuses to perform his undertaking, but is selling the stock and receiving the proceeds, which he is applying to his own use, and fails to pay over to complainants, and is thereby daily diminishing their security; that he is greatly embarrassed in his circumstances, at this time, and has created one or more liens, in favor of one or more of his creditors, on other property belonging to him, being thereto pressed and unable otherwise to satisfy the demand made on him, and they apprehend and charge there is great danger that Triebert will dispose of the whole of his said stock in trade, or give liens thereon, to persons unaware of their claims and equitable lien in the premises, and so put said stock in trade, and the proceeds thereof, beyond their reach. And they further charge, that if liens are so created in favor of other persons on said stock, or the same shall be sold by Triebert, and the proceeds pass into his hands, there is great danger that they will not only lose their promised security, which is now ample for their debt, but also their debt itself, it being the belief of the complainants, which they hereby charge, that Triebert is largely indebted [**4]  beyond his means of payment; that they are advised they have, under the circumstances above stated, an equitable lien on said stock in trade, and as the whole indebtedness which it was meant to secure, has now matured, they are entitled to a sale of the same, under a decree, for the satisfaction of their debt, and, in the mean time, to the protection of the court, through the medium of a receiver, against what they charge to be, on the part of Triebert, not only a fraudulent denial of the security promised them, but also a fraudulent misappropriation, to their irreparable injury, of the property agreed to be mortgaged to them.

The bill then prays for a decree that the complainants may have and hold the said stock in trade as security for the indebtedness of Triebert, in manner and form as promised, and for a sale thereof, and also for an injunction restraining Triebert from selling or disposing of the same, and for a receiver to take charge of said stock in trade, and hold the same subject to the order of the court, and for general relief.

The affidavit to this bill is stated in the opinion of this court. On the same day on which it was filed, the court (KREBS, J.) passed [**5]  the order from which the defendant appealed, and, on the next day, that from which the complainants appealed. Both these orders are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed in part, and affirmed in part, and cause remanded for further proceedings.  

HEADNOTES:

An affidavit to a bill for an injunction, "that the facts stated in the bill are true to the best of his (complainant's) knowledge and belief," is sufficient.

Unless the necessity be of the most stringent character, the court will not appoint a receiver until the defendant is first heard in response to the application.

An order directing to be delivered to the receiver "the goods, wares, and merchandise, and effects" of the defendant, when his agreement, as stated in the bill, was, that he would give a mortgage "of all his stock in trade in the city of Baltimore," is erroneous, because too comprehensive.

The provisions of the insolvent act of 1854, ch. 193, which make void judgments, decrees, conveyances and assignments, for fraud, or for gaining undue preferences, relate only to cases of insolvency in which there have been petitions for the benefit of that act.

When no particular time for payment is limited in a mortgage, it is to be paid in a reasonable time, and if the payment is not so made, the mortgagee is entitled to a foreclosure.

A parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing.

In such a case a creditor, to secure whose claim the contract was made, has an equitable lien upon the property agreed to be mortgaged, and there being no reasonable ground to believe he could secure payment of his claim except by enforcing this lien, he is entitled to an injunction to restrain the debtor from disposing of the property.  

COUNSEL:
George William Brown for the defendant below, argued:

1st. That even if the allegations of the bill were clearly proved, an injunction should not have been granted, because the bill substantially alleges that the defendant was insolvent, and if so, he had no reasonable expectation of being exempted from liability or execution on account of his debts, without petitioning for the benefit of the insolvent laws. The complainants had full knowledge of his insolvency, and the contract sought to be enforced by them, was an attempt to obtain an undue and improper preference, and, to enforce it, would be in violation of the policy of our insolvent system, (Act of 1854, ch. 193, secs. 6, 7, 8, 10,) and if the insolvent laws do not apply to the case, still the court would not enforce such a contract in such a case, because it would be contrary to the doctrine of equity that equality is the highest equity.

2nd. The contract [**6]  is too indefinite to be specifically enforced. It is of the essence of a contract of mortgage that time should be agreed upon. What was the time to be given for the repayment of the $ 900 advanced? None was agreed upon, and the court cannot undertake to fix it. Nor does it appear whether there was any contract as to the custody of the property until the mortgage debt matured. At the time the bill was filed, a large portion of this debt was not due. The contract was uncertain in this particular, and yet the court, by seizing the entire property of the defendant arbitrarily and without any proof, undertake to fix it. This it certainly could not do.

3rd. A mere parol agreement for a mortgage of personal property, gives no title in equity, and where a party is simply a general creditor, and has not prosecuted his claim to judgment and execution, nor acquired a lien on the debtor's property, he is not entitled to an injunction. The decision in Uhl vs. Dillon, 10 Md. 503, governs this case, for the complainants have acquired no lien, and only set up an equitable claim to a lien, which is not proved nor admitted.

4th. The affidavit made to the bill, by Burgess, one of the complainants,  [**7]  is, that the facts "stated in the bill are true to the best of his knowledge and belief." But he does not profess to have any personal knowledge of the facts, nor does he show how his knowledge and belief are derived. His knowledge and belief may have been derived from the report of others, for the bill does not charge that the alleged contract was made with him, or that any of the business was transacted by him. If so derived, he might not be liable to an indictment for perjury, even if the allegations were all false. Such an affidavit is unsufficient evidence to sustain an order for an injunction. 4 Price, 346, Scott vs. Becher. 1 Bland, 422, Williamson vs. Wilson. 6 Ves., 786, Davis vs. Leo. 1 Barb. Ch. Pr., 44. 2 Barb. Ch. Pr., 361.

5th. The order appointing a receiver, was clearly wrong. He was appointed before answer, without motion, and before notice to the defendant. This is in violation of the general rule, and can only be done in a case of pressing necessity, and on clear proof to meet the exigency of a special case, and no such necessity existed here. Again, a receiver will not be appointed where a defendant, as in this case, is in possession under a legal title. This [**8]  rule is only departed from in cases of fraud clearly proved, and of imminent danger to the property, and strong ground of title in the claimant. (Note.--This case was argued before the case of Blondheim, et al., vs. Moore, ante 365, was decided, and the authorities cited upon this point, being the same as those in that case, need not be here repeated.) But there are other objections to this order. The bill asks only for the appointment of a receiver of the stock in trade of the defendant, in pursuance of an alleged contract, but the order went far beyond this, and directed the receiver to take possession of all the goods, wares, merchandise, and effects of, or belonging to, the defendant. This is clearly wrong. It dispossessed the defendant of every species of property, even more completely than if he had applied for the benefit of the insolvent laws. Act of 1854, ch. 193, sec. 1. Again, the receiver appointed was a solicitor of the complainants, and for this reason the order was improper. Edwards on Receivers, 54, 66. 11 Paige, 200, Warren vs. Sprague. 1 Hogan, 322, Wilson vs. Poe. 2 Ves., Jr., 137, Garland vs. Garland. 2 Merivale, 452, Ex-parte Pincke. (Note.--As to this last objection,  [**9]  the court stopped the counsel on the other side, saying the appointment of the solicitor as receiver was no cause for reversal of the order.)

As to the appeal by the complainants, it is insisted, 1st, that the order of the court on the receiver, to deliver over the property after the appeal bond was filed by Triebert, is not one from which an appeal can be taken; and 2nd, that the filing of the appeal bond rendered such an order necessary.

Jas. Malcolm and J. Mason Campbell for the complainants below, argued:

1st. The case, on this appeal, coming before the court upon the bill alone, (10 Md. 429, McCann vs. Taylor,) it is insisted that equity has jurisdiction, and will enforce a parol contract to give a security upon personal property. This is conclusively settled, so far as the law of this State is concerned, by the case of Alexander vs. Ghiselin, 5 Gill 138. See, also, 4 Kent., 140. Miller on Equitable Mortgages, 16, 28. 2 Sch. & Lef., 382, Card vs. Jaffray. 1 Cox, 211, Beckett vs. Cordloy. 2 Atk., 347, Matthews vs. Cartwright. 9 How., 390, Tayloe vs. Merchants Fire Ins. Co. 19 Eng. Law & Eq. Rep., 57, Bell vs. Carter. 2 Amer. Law Reg., 20, Wright vs. Shumway.  [**10]  

2nd. There is no validity in the several special objections urged against this bill, and the contract set out in it. 1st. To enforce this contract would be no violation of the policy of our insolvent system. The contracts and conveyances which the act of 1854, ch. 193, annuls, are those which are made in cases of technical insolvency, where the parties petition for the benefit of the insolvent laws, and no such insolvency is shown in this case. 4 Gill 38, Wheeler vs. Stone. 9 Gill 231, Powles vs. Dilley. And, besides, the case of Alexander vs. Ghiselin shows that a parol agreement to execute a mortgage will be enforced in equity, notwithstanding even a technical insolvency. 2nd. That no time was fixed for the payment of the mortgage debt, and of redemption is immaterial. The loan of the $ 900 was payable on demand, and the mortgage accommodates itself to the debt; no time need be mentioned. Again, when the decree is passed under the act of 1785, ch. 72, the time for payment can be regulated at the discretion of the court. See, also, Miller on Equitable Mortgages, 16, 27. 3rd. Nor is there any force in the objection to the sufficiency of the affidavit to the bill. The form [**11]  is that in which such affidavits have always been made in this State. When a party swears that the facts stated in his bill are true to the best of his knowledge and belief, he swears that to his best knowledge they are true, and if any of the facts are within his personal knowledge, this affidavit subjects him to perjury if they are found to be false; and if a man swears he believes that to be true which he knows to be false, it is perjury.

3rd. That such a contract having been made in this case, upon a valuable consideration paid therefor by the complainants, the defendant was, as to the complainants, a trustee of the property embraced by such a contract, (Hunt vs. Rousmaniere, 1 Pet., 17,) and that his fraud, coupled with imminent danger of irreparable loss, rendered an injunction and receiver the only available means to save the property pending the litigation. 1 Ves. & Bea., 183, Metcalfe vs. Pulvertoft. 13 Ves., 105, Hugonin vs. Basely. 16 Ves., 70, Lloyd vs. Passingham. 1 Md. Ch. Dec., 70, Clark vs. Ridgely. Ibid, 489, Thompson vs. Diffenderfer. 2 Md. Ch. Dec. 157, Dorsey vs. Roberts. 12 Ves., 5, Anonymous. 31 Eng. Law & Eq. Rep., 436. 3 Younge & Coll., 379. The order sufficiently [**12]  follows the bill; the word "effects" adds nothing to the meaning of the previous words, and, besides, the defendant was not bound to deliver any thing which the receiver had no authority to receive.

As to the appeal of the complainants, it is insisted that the order appealed from is erroneous. The act of 1853, ch. 374, only stayed the operation of the order from the time of bond given, and gives no retrospective effect to the bond or appeal. The court might have directed the receiver to proceed no further, but it could not undo what had been done; it might stay the further operation of the order, but could not treat it as rescinded by the appeal. 2 H. & J. 7, Beatty vs. Chapline.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*459]  ECCLESTON, J., delivered the opinion of this court.
The bill and exhibits being filed, the court passed an order appointing a receiver, with authority, on his giving bond, to take charge and possession of the goods, wares, merchandise and effects of the defendant, and directing him to surrender the same to the receiver. The order also granted an injunction according to the prayer of the [**13]  bill, upon a bond being filed by the complainants, but reserving liberty to the defendant to move for the rescinding of the order, and for a dissolution of the injunction, at any time after filing his answer, on giving the complainants five days' previous notice of such motion.
This order is dated the 10th of November 1857, on which day the injunction issued, after the bond of the complainants and that of the receiver were filed.
On the following day the defendant filed his answer, entered an appeal from the order granting an injunction and appointing a receiver, and filed his appeal bond.
Afterwards, but on the same day, upon motion by the defendant, the court passed an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver's appointment. From which order the complainants appealed.
On the first appeal the solicitors of Triebert contend, that, admitting the allegations of the bill may be sufficient to entitle the complainants to the relief they ask, if the bill had been properly proved, or sworn to, still the order appealed from should not have been passed, because the affidavit of the complainant is defective, in not [**14]  stating positively his knowledge of the truth of the matters alleged, the oath being, "that the facts stated in the bill are true, to the best of his knowledge and belief."
In Coale vs. Chase, 1 Bland 136, the form of an affidavit to the answer was objected to, as being too vague, indefinite and general. The affidavit was, "that the several matters and facts set forth in the within and aforegoing answer are just and true as they are therein stated, according to the best of her knowledge, belief, and recollection." The chancellor admitted 

 [*460]  that, regularly, the affidavit in such cases should assert, "that the facts within the defendant's own knowledge are true, and that those facts not within his own knowledge he believes to be true." But because, in Maryland, there had been, as far back as his observation extended, a very great neglect of all regularity in the forms of such affidavits, the chancellor did not feel authorized to depart from even so improper a practice as to require more than a substantial sufficiency in such affidavits. He thought them sufficiently absolute and positive, if, when taken in connection with the body of the answer, the [**15]  party would be subject to a prosecution for perjury, in case the matters stated in the answer should be false. He held it to be well settled, that if a man swears he believes that to be true which he knows to be false, he swears as absolutely and is as criminal as if he had made a positive assertion; and may be prosecuted and punished for perjury. And although the chancellor did not think the affidavit so correctly expressed as it ought to have been, still, when taken in connection with the whole answer, he deemed it substantially sufficient; because if any of the allegations of the answer were false, the defendant would be as clearly liable to a prosecution for perjury as if the affidavit had been couched in the most positive terms. Upon which answer, thus sworn to, the injunction previously granted was dissolved.
At one time it was held, in England, that a man who swore to his belief could not be prosecuted for perjury; but this has been overruled by more recent authorities, which sustain the doctrine stated by Chancellor Bland.
In 3 Waterman's Archb. Crim. Prac. & Plead., 596, it appears, that in the Common Pleas, in 1780, Lord Loughborough and other judges "were unanimous [**16]  that belief was to be considered as an absolute term, and that an indictment might be supported upon it." See, also, Commonwealth vs. Warden, 11 Metcalf 406.
The matters set forth in the present bill, which could be supposed to be within the knowledge of the complainants, are not stated as believed by them upon information received from other sources than their own knowledge; but the allegations 

 [*461]  in the bill are stated in the usual manner of averring facts as based upon the knowledge of the complainants. And, in view of the long established practice in this State, we cannot sustain the defendant's objection to the form of the affidavit. When the facts, as here stated, are sworn to by a party to be true, "according to the best of his knowledge and belief," he must be considered as making a sufficiently positive assertion that they are true.
Triebert, as appellant, objects to the order of the 10th of November, both as regards the granting of the injunction and the appointment of a receiver. The portion relative to the receiver will be first disposed of.
This will not require a very extended examination, because in the case of Blondheim, et al., vs. Moore,  [**17]   decided during the present term, (ante 365,) this court has very clearly enunciated such rules in relation to the appointment of receivers as must settle the case before us on this subject.
One of the rules alluded to is: "That unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application." In that case the appointment of a receiver, without notice to the defendants having been given, was held to be erroneous.
According to the principles there established, there is no such imperious necessity as should justify the appointment of a receiver without notice, in the case before us; especially as the defendants were merchants, residing in the city of Baltimore, but a short distance from the court in which the order was passed. And this order was erroneous, because too comprehensive. It directed to be delivered to the receiver "the goods, wares, and merchandise, and effects," of the defendant, whereas his agreement, as stated in the bill, was, that he would give a mortgage "of all his stock in trade in the city of Baltimore."
In reference to the injunction, the defendant insists, that the bill [**18]  does not present a case which entitles the complainants to a specific execution of the alleged agreement for a mortgage, and, therefore, the injunction should not have been granted. 

 [*462]  Different grounds are urged against the complainants' right to have a mortgage. One is, that the complainants had knowledge of the defendant's insolvency, and the arrangement alleged by them, by which, on the advance of $ 900, they were to have a mortgage on the defendant's entire stock in trade, to secure the advance and the entire debt due, and to become due from him to them, was an attempt to obtain an undue and improper preference. And to grant the relief asked, would be in opposition to the policy of our insolvent law of 1854, ch. 193, secs. 6, 7, 8 and 10. In support of this view, it is said, that the bill alleges the defendant to be greatly embarrassed in his circumstances, that he had created one or more liens in favor of one or more of his creditors on other property belonging to him, being thereto pressed, and unable otherwise to satisfy the demand made on him; that the complainants apprehend and charge there is great danger that the defendant will dispose of his whole stock in trade, [**19]  or give liens thereon, to persons unaware of the complainants' claims and equitable lien in the premises, and so put the said stock in trade, and the proceeds thereof, beyond the reach of the complainants; and they further allege, that if liens are so created in favor of other persons, on said stock, or the same shall be sold by the defendant, and the proceeds pass into his possession, there is great danger that they will not only lose their promised security, which is ample for their debt, but also their debt itself, it being the belief of the complainants that said defendant is largely indebted beyond his means of payment. It does not, however, appear that the defendant has ever become a petitioner for the benefit of the insolvent law; and we understand that he never was an insolvent petitioner.
It is manifest that the sections in the act of 1854, which have been referred to, relate only to cases of insolvency, in which there have been petitions for the benefit of that act. And in such cases, alone, does that law make void judgments, decrees, conveyances and assignments, for fraud or for giving undue preferences.
The 6th section declares, "That no person shall be released or discharged [**20]  under this act, who has conveyed, concealed or disposed of his property to defraud," &c.

 [*463]  The 7th section is, "That any confession of judgment, and any conveyance or assignment, made by any insolvent under this act, for the purpose of defrauding his creditors, or giving an undue preference, shall be void, and the property or thing conveyed or assigned, shall vest in the trustee, and that all acts done by a petitioner before his application, when he shall have had no reasonable expectation of being exempted from liability or execution, on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws, shall be deemed to be within the meaning and purview of this section."
The 8th section provides, "That any judgment or decree confessed to give an undue preference to any creditor, or for the purpose of defrauding any creditor, shall be void, and excluded in the distribution under this act."
The 10th section enacts, "That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity, and no creditor shall acquire a lien by fieri facias or attachment, unless [**21]  the same be levied before the filing of the petition." (The italics are ours.)
There having been no such insolvency shown as the act of 1854 contemplates, we are not prepared to say that its provisions can defeat the complainants' claim under the alleged contract for a mortgage. See, in Kettlewell vs. Stewart, 8 Gill 472, a note of the opinion delivered by Chief Justice Taney, in the case of White, Warner & Co., vs. Winn & Ross.
The present is a case in which the debtor himself is resisting the complainants' right to relief, but which is not opposed by creditors of the defendant, or by a trustee for them.
Another objection to this contract is, that it cannot be specifically enforced, because it is too indefinite, inasmuch as no time is limited for payment of the mortgage; and as the parties have agreed upon none, the court cannot undertake to fix it. Such an objection is not a valid one. Very recently, in Farrell vs. Bean, 10 Md. 217, this court has said: "When no particular time of payment is limited in a mortgage, 

 [*464]  it is to be paid in a reasonable time. And if the payment is not so made, the mortgagee is entitled [**22]  to a foreclosure." Moreover, a mortgagor cannot seriously apprehend being oppressed by want of proper time to pay, under a final decree, as this matter is at the discretion of the judge, who will, of course, regulate the time for payment under the decree, according to the equitable circumstances brought before him.
That, in Maryland, a parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing, has been fully established in Alexander, et al., vs. Ghiselin, et al., 5 Gill 138, and Sullivan vs. Tuck, 1 Md. Ch. Dec. 59. According to the views of the chancellor, in the latter case, courts of equity do not specifically enforce contracts in respect to personal property, with the same facility and universality as contracts relating to real estate; the cause of which is, that in contracts of the first class, courts of law are generally competent to afford full redress. 2 Story's Eq., sec. 717. But when, at law, a party cannot have a complete and satisfactory remedy, although the contract relates to [**23]  personal estate, a court of equity will grant relief. Ibid., sec. 718.
Under the circumstances set forth in this bill, there was, in our opinion, an equitable lien upon the defendant's stock in trade, which authorized the court to grant the injunction. According to the facts stated, there was no reasonable ground to believe that the complainants could secure payment of their claim, except by enforcing their equitable lien.
On this appeal the answer is not before us, and we can only look to the bill and exhibits.
That portion of the order of the 10th of November 1857, which appointed the receiver, will be reversed, but the portion of it which relates to the injunction, will be affirmed.
Inasmuch as the receiver was improperly appointed, the appeal of the complainants from the order of the 11th of November, cannot be sustained, for, in any view of the case, that order did them no injury.

 [*465]  The order appealed from by Triebert, is reversed in part, and affirmed in part; and the parties are to pay their own costs in this court.
Order reversed in part, and affirmed in part, and cause remanded for further proceedings.
Upon the appeal of Burgess and others, the [**24]  same Judge delivered the opinion of this court:
From what has been said in the opinion delivered in the appeal of Triebert vs. Burgess and others, it will be seen that we think the order appealed from in this case ought to be affirmed. A decree accordingly will be signed, allowing costs in this court in favor of Triebert.
Order affirmed. 

14 of 47 DOCUMENTS 

NORTHERN CENTRAL RAILWAY COMPANY vs. JOHN H. PRENTISS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 119; 1857 Md. LEXIS 28 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellee against the appellant, to recover the sum of $ 400, for services as physician and apothecary, alleged in the declaration to have been rendered by the plaintiff, at the special instance and request of the defendant, for one William Steinhagan, who had been severely injured by an accident on the Baltimore & Susquehanna Rail Road, on the 4th of July 1854. The declaration avers, that the defendant had succeeded to all the rights and liabilities of the Baltimore & Susquehanna Rail Road Company, by virtue of the act of 1854, ch. 250. It contains a quantum meruit count and the common money counts. Plea, non assumpsit.

Exception. The evidence in the case is fully stated in the opinion of this court, as is also the prayer on the part of the plaintiff, which was granted by the court below. Two prayers were offered on the part of the defendant:

1st. That the plaintiff is not entitled to recover in this case, unless the jury shall be satisfied, from the evidence, that the professional services sued for, were rendered at the instance of the defendant, or its agent, and that there is no evidence to go to the jury [**2]  to show that they were so rendered.

2nd. That if the jury are satisfied, from the evidence, that the plaintiff was employed in the first instance to render the services sued for, not by the defendant or its agent, but by other persons, then that the defendant is not liable in this action, because there is no evidence of any written undertaking, on its part, to pay or be responsible for the same.

The court (MARSHALL, J.,) granted the plaintiff's prayer, but refused both of the defendant's. To this ruling the defendant excepted, and the verdict and judgment being in favor of the plaintiff for $ 213.16, with interest and costs, appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

To constitute an original undertaking to pay for services to be rendered another, it is necessary that they should be rendered not only at the instance and request, but also upon the credit of the party undertaking to pay for them.

A physician attended, for several days, as his patient, a man who had been injured by a rail road accident, and whilst this attendance was going on, the rail road company, by its agent, requested him to continue his attendance, and promised that the company would pay him for his services. HELD:

That this did not amount to an original undertaking or promise on the part of the company to pay for future services, unless the jury should believe they were rendered upon the credit of the company, and not upon that of the patient. 

COUNSEL:
Bernard Carter and J. M. Campbell for the appellant:

The instruction granted by the court below was clearly erroneous, because there was no evidence competent to go to the jury, that any portion of the services sued for in this action, were rendered at the request of the defendant. The evidence in the record clearly shows that the appellee was originally employed to render his professional services to Steinhagen, by an individual in no way connected with, nor in any respect acting for the [**3]  rail road company, or any of its agents. The obligation to pay for these services was, therefore, the debt of Steinhagen, or of the person employing the plaintiff, and could only be assumed by the rail road company by a written instrument. To constitute this an original undertaking on the part of the company, the services must have been rendered at the request and upon the credit of the company, and no credit must have been given to Steinhagen. If the services were rendered originally at the request or instance of Steinhagen, the party injured by the accident, then the company's coming in and assuming to pay for them, was clearly a collateral undertaking, and must be in writing. 14 Wend., 247, Larson vs. Wyman. 6 Pick., 511, Tileston vs. Nettleton. 15 Pick., 169, Loomis vs. Newhall. 3 Pick., 207, Mills vs. Wyman. 4 Md. 476, Ellicott vs. Peterson. 7 H. & J. 391, Elder vs. Warfield. 12 Verm., 38, Sinclair vs. Richardson. 5 Wend., 277, King vs. Despard. 5 Hill, 483, Carville vs. Crane.

John T. Morris and Edward O. Hinkley for the appellee, argued:

1st. That the defendant's first prayer takes from the jury the questions of fact, whether the services of the plaintiff,  [**4]  or any of them, were rendered at the instance of the defendant. The manner of communicating the promise, in this case, is not objectionable; for if a promise be made generally to any person who shall do a certain thing, the person who does it may maintain assumpsit upon it. 2 Root, 119, Bull vs. Talcot. 1 Jones' Law Rep., (N. C.) 10, Buie vs. Shipman. 1 Zabriskie, 310, Furman vs. Parke. 5 Metcalf, 56, Freeman vs. City of Boston. 6 Mass., 344, Symmes vs. Frazier. The consideration for the promise in this case is sufficient; for any act done, trouble or inconvenience, is sufficient. 17 Conn., 517, Clark vs. Sigourney. And it matters not that the consideration was a past one, if it was beneficial to the defendant, or if there was a subsisting legal obligation. Wherever the law would imply a promise, an express promise made after the execution of the contract, is considered to be founded on a good consideration, and the jury may infer a request from the circumstances. 10 Johns., 243, Hicks vs. Burhans. 14 Do., 192, Oatfield vs. Warring. Ibid, 378, Doty vs. Wilson. 4 Foster's (N. H.) Rep., 546, Wilson vs. Edmonds. Broom's Legal Maxims, 50 Law Lib., 344, 345, 348. Now the circumstances in [**5]  this case are such, that the jury might fairly have inferred an implied promise. In general, it is the province of the jury to determine the meaning of words used orally, the intention of the parties, the question to whom the credit was given, and other similar facts. 1 Cushing, 91, Thruston vs. Thornton. 36 Maine, 380, Brown vs. Orland. 30 Eng. Law & Eq. Rep., 510, Pearce vs. Blagrave. And in particular cases, where another person comes in and assumes to pay for them, it is the province of the jury to determine to whom the credit was given, and whether the undertaking is an original or a collateral one. 1 H. Bl. Rep., 120, Anderson vs. Hayman. 21 Maine, 312, Homans vs. Lambard. 20 Verm., 538, Arbuckle vs. Hawks. 7 H. & J. 391, Elder vs. Warfield. Ibid., 417, Wyman vs. Gray. 1 Gill 260, Conolly vs. Kettlewell. 4 Md. 492, Ellicott vs. Peterson. 1 Gray, (Mass. Rep.,) 396, Alger vs. Scoville. 1 Compton & Meeson, 810, Paynter vs. Williams.

2nd. The defendant's second prayer was likely to mislead the jury by directing their attention solely to the question by whom the plaintiff was employed in the first instance, thus impliedly denying them the right to look to the other [**6]  facts in the case, to see whether the defendant's acts, thereafter, did or did not amount to a ratification of a new contract directly with the defendant, whereby the old one with Steinhagen (if such there was) had been rescinded or superseded; that is, whether any part of the services were rendered upon request of the defendant, thus asking for a determination by the court that the contract was an entirety, which was a question of fact for the jury. 7 H. & J. 391, Elder vs. Warfield. 5 Wend., 277, King vs. Despard. 12 Verm., 38, Sinclair vs. Richardson. Ibid, 629, Blood vs. Enos. 33 Maine, 368, McKeenan vs. Thissel. Broom's Legal Maxims, 50 Law Lib., 346.

3rd. The plaintiff's prayer put the matter in the true light, for the reasons already mentioned in arguing the defendant's prayers. The criterion--the pole-star in all the cases--is to whom was the credit given, and this is a question of fact for the jury. A careful consideration of this question will reconcile cases seemingly conflicting, cited upon the other side. 7 H. & J. 391, Elder vs. Warfield. 6 Pick., 509, Tileston vs. Nettleton. 15 Pick., 159, Loomis vs. Newhall. 14 Wend., 246, Larson vs. Wyman. Where the fact [**7]  is settled, the court will determine, but the question of fact cannot be taken from the jury; and even if they give an erroneous verdict, this court will not interfere with it, if the instructions of the court below were not wrong.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*123]  ECCLESTON, J., delivered the opinion of this court.
This is an action of assumpsit instituted by John H. Prentiss, the appellee, against the appellant, to recover the sum of $ 400, for services rendered by the former as a physician and apothecary, for the benefit of William Steinhagen, who had been severely injured by an accident upon the Baltimore & Susquehanna Rail Road.
The accident occurred on Tuesday, the 4th of July 1854, and Steinhagen was taken to the house of Samuel Getty, the same evening. The next day, Jones, (a witness for the plaintiff,) in going to the city of Baltimore, met Doctor Prentiss, the plaintiff, and told him of Steinhagen's condition, and asked the doctor to go to see him, and attend him, as he had no physician. But Jones says he had no conversation with the doctor as to any authority to employ him. The witness, of [**8]  his own accord, told the doctor to go to see Steinhagen; and it appears that he did go.
The evidence of Getty shows that the injured man was confined for about eleven weeks, during which time the plaintiff attended him, furnishing him with medicine and wine.
The Sunday after the accident, Mr. Tagart went to the house of Getty, to see Steinhagen.
The plaintiff examined Mr. Tagart as his witness, who stated that he was a director of the Baltimore & Susquehanna Rail Road Company, and counsel for the company; that all the cases arising out of the accident were put under his charge; that in virtue of this authority he went to the house of Getty to see Steinhagen, and told those having care of him not to let him suffer for the want of any comforts that he might wish, and if they would go to the company, they would pay for them; and that he, the witness, was agent and counsel for the 

 [*124]  rail road company, for the settlement of pecuniary claims arising out of the accident; that he gave to a certain Parsons an order upon the company for the payment of the money, which, for the company, he had agreed to pay Steinhagen in settlement of his claim for his injuries. And on cross-examination, [**9]  this witness stated that he did not at any time employ the plaintiff to attend upon Steinhagen; that as agent for the company, he made a settlement with Parsons, who was agent of Steinhagen, for the sum of $ 1000, which was a full and final settlement of all claims against the company, arising out of the injuries received by Steinhagen, and was intended to include compensation to him, and all doctors' bills, and bills of others who might have any claims against the company, arising from services rendered him; that the witness stated to the parties, at the time, that this must be a full and final settlement of all claims. This witness also said he never would have made any other settlement than a full and final one of all claims, his instructions authorizing such and only such a settlement; that he never made any reservation of the liabilities of the company to the doctors, and never made use of the words, "we will fight the doctors."
The plaintiff's witness, Parsons, stated that he saw Steinhagen the night of the accident; that Doctor Prentiss came to see him the next day, or the next day but one, and attended him from that time during his illness; that on the next Saturday after [**10]  the accident, Mr. Tagart went to the house of Getty, where Steinhagen was, witness was present when he came, and Tagart told witness and Getty not to let Steinhagen suffer for the want of any thing he might wish, to let him have every thing necessary for his comfort, every thing must be done to save his life. After this, the witness told Doctor Prentiss the rail road company would pay him. This witness was agent for Steinhagen, in the settlement of his claim against the company. The witness stated that Steinhagen wanted $ 2000, which was to include all doctors' bills and all others; this Mr. Tagart refused; witness afterwards offered to take $ 1500, out of which Steinhagen was to pay doctors' bills and other bills; this Mr. Tagart refused, and said the company 

 [*125]  wanted to fight the doctors, on account of their exorbitant bills; after this, Mr. Tagart offered $ 1000 to witness; witness asked him to pay, besides this, one hundred dollars to Getty, for taking care of Steinhagen; this was refused; witness then accepted the offer of $ 1000. As he was leaving Tagart, witness said, this "does not include doctors' bills;" Tagart said "no, we will fight the doctors." The understanding [**11]  of witness was, that the company was to pay the doctors; and if any thing is in the release contrary to this, it is a fraud. On cross-examination, this witness said that Steinhagen and his father (the son being a minor) executed a release to the company of all claims against the latter; that Mr. Tagart told the witness he was only authorized to give $ 1000 in settlement of Steinhagen's claim. The witness went, at the request of Mr. Tagart, to find out the amount of doctors' bills, before the settlement. Doctor Bull was called in some time after witness saw Mr. Tagart, at Getty's house.
Starr, a witness for the plaintiff, stated that he went with Parsons and Getty to make a settlement of Steinhagen's claim with Mr. Tagart; that Parsons asked $ 2000 the first time, which was refused; the second time $ 1500 was asked, including doctors' and other bills, this Mr. Tagart refused, saying the company considered the doctors' bills exorbitant, and wanted to fight the doctors. Witness was not present when Tagart and Parsons settled for $ 1000.
The witness Getty, called by the plaintiff, said that when Parsons offered to settle for $ 1500, and pay all bills, Tagart refused, and said the doctors [**12]  want to extortion on the company, and we will fight them; we want to know what's the lowest cent you will take yourself.
Rhinehardt, a witness for the plaintiff, said he made an apparatus called Smith's patent, for one of the persons injured in the accident on the 4th of July, which Doctor Prentiss had ordered. The rail road company paid for this, but refused to do so until witness produced the certificate of the doctor who had ordered it. Doctor Prentiss certified to its correctness; thereupon they paid for it.
The defendant then gave in evidence a release of all claims 

 [*126]  and demands given by Steinhagen and his father, in consideration of $ 1000, and proved the payment of that sum. It likewise gave in evidence a receipt from Samuel Getty for $ 16, for an apparatus for William Steinhagen's leg.
The plaintiff asked the following instruction: "That if the jury believe, from the evidence, that the plaintiff rendered the services, or any portion of them, sued for in this case, at the instance or request of the defendant, and acting under the authority of its agent or agents, then the said company is responsible for the payment of the value of such services as were rendered [**13]  at the instance of the defendant, as an original undertaking of their own." And this instruction was given.
The verdict and judgment being in favor of the plaintiff, the defendant appealed.
Two prayers were presented by the defendant, which the court refused to give; but the views which will be expressed in this opinion, in regard to the prayer of the plaintiff, render it unnecessary to notice those of the defendant.
At the close of his argument, the senior counsel of the appellant abandoned all reliance upon any alleged difference between the corporate powers or liabilities of the Baltimore & Susquehanna Rail road Company and those of the Northern Central Railway Company; whether such alleged difference is considered with reference to the language of the plaintiff's prayer, or with regard to the responsibility of the latter company for the engagements, contracts or liabilities of the former.
The plaintiff contends, that under the proof in this case, the court did right in instructing the jury, that if they should believe the services sued for, or any portion of them, were rendered by the plaintiff, at the instance or request of the rail road company, or its agent, then the [**14]  company is responsible for the services so rendered, and responsible for the same as an original undertaking by the company. The original undertaking here alluded to, is in contradistinction to a collateral promise. And the legal proposition asserted is, that if A renders services to B, at the instance or request of C, this creates an original and not a collateral engagement on the part of C to pay for the services, without the necessity of ascertaining 

 [*127]  whether A has rendered the services upon the credit of B, or that of C. But we do not so understand the law.
Conceding (without meaning to say whether there is or is not) sufficient evidence to warrant the jury in believing the agent of the company requested the doctor to attend the injured man, and said the company would pay for such attendance, still it is true, beyond all controversy, that if the agent did so, it was not until after the doctor had been visiting the injured man, as his patient, for several days. Now, if for the medical attendance thus going on, there was no express contract or promise to pay, there was, at least, an implied promise on the part of the patient. And if, under those circumstances, the agent [**15]  of the company requested the doctor to continue his attendance, and added that the company would pay him for his services, still that would not amount to an original undertaking or promise to pay for future services, unless the jury should believe they were rendered upon the credit of the company, and not upon that of the patient.
In Elder vs. Warfield, 7 H. & J. 391, the court say it is the general rule "that wherever the party undertaken for is originally liable upon the same contract, the promise to answer for that liability is a collateral promise, and must be in writing." And again, on page 397, it is said: "But where the party undertaken for is under no original liability, the promise is an original undertaking, and binding upon the party promising, without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, as if A says to him, let C have goods to such an amount, and I will pay you, and the credit is given to A; in that case, C being under no liability, there is nothing to which the promise of A can be collateral; but A being the immediate debtor, it is his original undertaking, and not a promise to answer for the debt [**16]  of another." Here the circumstances mentioned as creating an original undertaking on the part of A, include not only the delivery of goods to C by B, at the request of A, and on his promise to pay for them, but also the delivery of them upon the credit of A, there being no liability on the part of C.
In Ellicott vs. Peterson's Ex'crs, 4 Md. 476, the 

 [*128]  court say: "It was not a collateral, but an original undertaking, for although the children might have been responsible, under other circumstances than those which constitute this case, for the support, &c., extended to them by their stepfather, yet that support, &c., was extended not on their credit, either express or implied, but solely on the credit and liability of the testator of the defendants. Where there is no credit given to the party who receives the benefit of the services rendered, or money advanced, the agreement to pay, by a third party, is an original undertaking, and, for that reason, not within the statute." This is a recognition of the principle stated in Elder vs. Warfield, to which case the court refer, and also to Conolly vs. Kettlewell, et al., 1 Gill 260. [**17]  
The hypothesis of the prayer before us is, that the defendant is liable as having made an original and not a collateral promise, if the jury believed that the doctor's services, or any portion of them, were rendered by him at the instance or request of the defendant. It does not submit to the jury any inquiry whether such services were rendered upon the credit of the defendant. For the failure to do this, we think it should not have been granted; consequently the judgment will be reversed.
Judgment reversed, and procedendo awarded. 

15 of 47 DOCUMENTS 

FRANCIS H. INLOES, GARNISHEE OF TURNBULL & CO., vs. THE AMERICAN EXCHANGE BANK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 173; 1857 Md. LEXIS 32 

DECEMBER, 1857, Decided 

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

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

The defence relied on was a deed of trust for the benefit of creditors, executed by Turnbull & Co. to the appellant, as trustee, and dated the 22nd of September 1851. This deed purports, on its face, to be executed by the partnership firm of Turnbull & Co., and conveys "all the goods, wares, merchandise, chattels and effects (goods consigned for sale to said Turnbull & Co. excepted) now in, of and belonging to the store and warehouse held and conducted by the said Turnbull & Co., on Baltimore street in the city of Baltimore; and also all the notes, bonds, evidences of debt, securities, claims and demands of, or belonging to the said John and George, as partners aforesaid, or wherein they are in anywise interested." The provisions of this deed are fully stated in the report of this case on the former appeal in 7 Md. 380. The only provision which need be stated here is the following:

"Third. It is hereby declared, as part of the [**2]  trust of these presents, that said Inloes, his executors or administrators, shall, at his discretion, sell as aforesaid, all, or any part or parts, of said goods, wares, merchandise, chattels and effects, by public or private sale, and by wholesale or retail, or in parcels, as may by him, as to all or any portions of said property, be deemed eligible, and it being understood that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise."

The present trial was had under the procedendo awarded by this court upon the reversal of the judgment on the former appeal in this case, reported in 7 Md. 380.

Exception. At this trial both parties read in evidence all the testimony offered in the former trial, as set out in the procedendo record, which testimony, with the admissions in said record, it was agreed should be admitted as if offered and made anew. (It is only necessary to state that this record contained an admission of the execution of the deed of trust, together with oral proof, on the part of the plaintiff, that at the time of its execution Turnbull & Co. were [**3]  engaged in buying and selling carpets and oil cloths, selling both at wholesale and retail, but mostly by retail, on a credit of six months, according to the usage in Baltimore, and that of the proceeds of sale made by the trustee one-half were for sales on credit; and of oral proof on the part of the garnishee by J. S. Inloes, that the course pursued by the trustee in selling at private sale was by the advice of witness, who deemed it best for the interest of those concerned.) The garnishee then, at the present trial, offered evidence, subject to all objections as to its admissibleness and effect, by J. S. Inloes, John Turnbull, Jr., one of the grantors in the deed, and others, to the effect that the third clause in the deed was inserted upon the advice of the witness, Inloes, and was designed for the benefit of the creditors in order to obtain the best prices for the goods, and that it actually operated greatly to their advantage, the loss on the goods sold at private sale being about 25 per cent. less than on those sold at auction, and about three-fourths of the stock having been sold at private sale upon the same terms on which Turnbull & Co. had been accustomed to sell.

Upon [**4]  this evidence the plaintiff prayed the court to instruct the jury: "That the deed of trust offered in evidence in this case, and dated the 22nd day of September 1851, is void in law." This prayer the court (PRESSTMAN, J.,) granted, and the garnishee excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An assignment for the benefit of creditors gave the trustee power, at his discretion, to sell the property conveyed by the deed, consisting of a stock of goods in trade, "gradually in the manner and on the terms in which, in course of their business" the grantors "have sold and disposed of their merchandise." HELD:

That this provision renders the deed void upon its face, and cannot be aided by parol proof that it was inserted for the benefit of creditors, and was designed to, and did, operate for their advantage.

It is well settled, that an instrument void in law for matter appearing in the deed itself cannot be made good by averment.

Assignments for the benefit of creditors need not provide that the sales must be always made immediately and for cash, whether the interest of creditors will be affected or not; the trustee may be left to the exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions,

A party may always ask the direction of the court upon the effect of testimony in a cause, whether that testimony be offered subject to all objection as to its admissibility and effect or not.

The finding of facts must be left to the jury, even where the proof is all on one side, but this is not necessary where a case is tried upon admissions made at the bar, for the jury may discredit testimony but they cannot find contrary to the agreement of the parties.

The party appealing cannot, in this court, object to a prayer, that it assumes a fact which was admitted at the trial, and which admission was made for his benefit. 

COUNSEL:
Chas. F. Mayer and John Nelson for the appellants, argued:

1st. The deed appears now relieved from all unfavorable imputation attached to it by this court, when, on the former appeal, the clause was left unexplained which brought the deed into odium. The ample testimony elucidating the motive, and indeed the necessity, for the creditor interest of the clause, that necessity and the wisdom of the clause, verified by the result of the sales effected, give the deed a new character. It is such possible explanatory testimony, that this court must have had in view, when, with cautious reservation, they say, in 7 Md. 392, (after dwelling favorably on the case of Janes vs. Whitbread, 5 Eng. Law & Eq. Rep., 431, where even the carrying on of the debtor's trade by the trustee was sanctioned, because ancillary to the trust for the creditors,) that "such is not the fact," (proved in the case [**5]  then,) "and as this case at present stands we can regard it," (the assignment,) "in no other light than an attempt to place the assignee in the place of the debtor for the purpose of carrying on the latter's business as it had been previously conducted by him before the deed of trust, without any special benefit to be derived thereby by the creditors, and without limitation or restriction upon the trustee." The English case thus adverted to as an exemplar of the sound law for such a clause, and that case having more in the provision of "carrying on trade" to be overcome than this case exhibits, and the clause there being yet sustained only because it was shown to be introduced for the benefit of creditors, why is it that when we put ourselves in pari materia with that very case, by proof that our provision was not only meant, but was indispensably requisite for the creditor interest, we should not be admitted to the same favor before this court as met that case in England? The acceptance of the principle of that case, shows that this court deemed testimony explanatory of such a clause competent, and that however prima facie and without explanation the clause might vitiate the trust,  [**6]  it had but a presumptive force to that effect, and was not of that class of provisions which rendered the deed fatal in Green & Trammel vs. Trieber, 3 Md. 39. Resting, as the court does, on the case in 5 Eng. Law & Eq. Rep., 431, they admit that this is not a clause that by necessity is so dishonest of purpose as to repel all explanation. The stamp of dishonesty is not, by the law, so obdurately put upon the clause, that the truth of purpose and of moral necessity in the clause may not be testified. The cases in Virginia, 11 Grattan, 348, Cochran vs. Paris, and 778, Dance vs. Seaman, show the principles which we maintain as ruling here, that where it is possible that the provisions questioned be honest in intent and useful for the fair object of the deed, evidence dehors the deed may be given to rebut any presumptive fraud, and this seems the spirit of the view of this court in Cole vs. Albers & Runge, 1 Gill 423. Even in New York, whence this new rigor in construing provisions of assignments for creditors is derived, it is said, that the question upon the fraudulent nature of the particular provision is, whether, if the provision be carried out according to its reasonable [**7]  intent, it will prove practically fraudulent, and that a provision is not to be condemned as fraudulent if the fraud resides only in the abuse of the provision. 15 Barb., 618, Brigham vs. Tillinghast.

2nd. But all question as to the admissibleness of parol testimony here may be considered as at rest, since it has been given, in fact, without any objection. 5 Md. 121, Coates & Glenn vs. Sangston. 3 Md. 295, Trump vs. Baltzell. 4 Phillip's Ev., Notes, 576. Our case is by the testimony for the first time now before the court, within the principle and very terms of the case adopted by this court in 5 Eng. Law & Eq. Rep., 431, and comes within the principle of the cases where a deed has been upheld, notwithing the trustee's power, at discretion, to delay the trust administration by working up manufacturing materials and using trust funds for so doing. It may be here said that New York, even, has sanctioned provisions of the terms just adverted to. 11 Wend., 240, Cunningham vs. Freeborn. But the testimony to show the bona fides and high expediency of the clause was competent, even if it had not been given without objection. The presumption of fraud, deduced from the unexplained [**8]  words, is rebutted and the deed restored. It is not familiar law, that where a clause in a deed is susceptible of explanation to a fair intent and effect, although, until explained, the law presumes against it, parol testimony may be given thus to develop the actual bona fides and usefulness of the clause? 3 Croke, 501, Nevison vs. Whitely. 2 Vent., 83, Bush vs. Buckingham.

3rd. There is no provision in the deed, in any discretionary authority given to the trustee, which annuls the deed, even if the clause referred to be considered as allowing sales upon credit. The power allowing the trustee to sell in manner as the debtors sold is proved to be one essential for the best interest of creditors, as surely commanding the best results for them. If such a course involves a credit on sales, that power is not to be regarded as a discretion of a fraudulent dye, and is to be treated only as a credit is where usage of trade requires and so sanctions it. The power, from the tenor of the clause, is necessarily limited by the practice and periods of credit in the business of the debtors, and while the limits of the usual credit are observed no indiscretion is committed and no fraud can be [**9]  imputed. As was stated in 15 Barb., 618, no presumption of fraud in a trustee, by exceeding the reasonable bounds of a power, shall be indulged, and thus where a power to sell on terms, as the trustee may deem most eligible, does not, by New York decisions, authorize the inference, that sales on credit (repudiated by those decisions) will be made, although such sales be within the words used. Such is the liberality of even New York judicature, grudgingly censorious as it is, of assignments for paying creditors. 19 Barb., 176, Bellows vs. Patridge. 21 Barb., 65, Nichols vs. McEwen. Ibid., 128, Clark vs. Fuller. Indeed, let the bona fides of a deed be once shown, and then any discretional power of the trustee may well be deemed harmless for the integrity of the deed, since, as a trust, the operation of the trustee will be under the control of a court of equity to check excess and to dictate the path of his administration. 2 Mich. Rep., 309, Hollister vs. Loud. Such views seem to have once governed our Court of Appeals, and the principle of credit operations in trusts does not appear to have appalled the court as fraught with fraudulent delay and ruinous hindrance to creditors, for undeniably [**10]  in Beatty vs. Davis, 9 Gill 211, the there-sanctioned privilege of a trustee to mortgage the trust property conferred the largest credit authorization. The sanction was safely lent to the trust, for the bona fides of the conveyance was not disputed, and the court of equity became, as the judicial guardian of the trust rights created, a virtual party to the deed for all wholesome administration of the estate, and to interpose against all wild action within the scope of the granted powers. The cases presented at the former hearing of this cause sustain a discretional authorization for credit sales, and we now add 22 Ala., 238, Shackelford vs. Bank of Mobile. Indeed we would respectfully suggest, that if exotic judicature of this country is to be invoked for light or counsel, we cannot see preeminent impressiveness over our southern judicial developments, in the New York judicial novelties, either in the philosophy or erudition, or social policy of the juridical work. There remains to be considered but the clause which exonerates the trustee from liability where he has not been guilty of actual and wilful wrong and default. This clause has been decided to import no more than a court [**11]  of equity limits as to the amenableness of a trustee. Remissness in his duty is an actual wrong to those whose interests are committed to him, and indifference to obligations distinctly before him, and appealing to him for care and action, is wilful default as much as gross negligence is constructive fraud. 18 Barb., 549, Jacobs vs. Allen. Jac., 198, Macklin vs. Fuller. Hill on Trustees, 314, and cases cited at former argument.

4th. The prayer of the appellee was defective, because it takes from the jury the finding of the deed of trust. If the deed be considered in evidence under an admission coming from us, still the prayer is not relieved from irregularity for assuming as a fact what it only was for the jury to show to be a fact, viz., the executing of the deed, for no admission of a fact, (which is but a mode of proof,) nor the absence of all counter testimony to a testified fact, will dispense with leaving to the jury the finding of the fact from the testimony in the case. 2 Gill 410, Charleston Ins. Co. vs. Corner. 3 Gill 31, Bullitt vs. Musgrave. 6 Gill 87, Franklin Fire Ins. Co. vs. Hamill. 2 Md. 75, Brown vs. Ellicott. 10 Md. 118, Boyd vs. McCann.  [**12]  Ibid., 234, Mitchell vs. Mitchell. Ibid., 333, Giles vs. Ebsworth & Hays. These cases show the critical strictness which this court applies to see that a prayer shall, by no implication of a fact, or even of the necessary consequence of a fact, exclude from the jury the ascertainment of all facts, and even the operation and results of facts. We do not see how it matters whether the appellee claims under the deed or whether we do.

Wm. Schley for the appellee, argued:

1st. The proposition asserted in the appellant's first point is this, that a deed, void on its face, because it contains provisions forbidden by law, may, nevertheless, be supported by parol proof, and be made to operate according to its tenor, and in accordance with these forbidden provisions. Where a deed, void as it stands, is sought to be reformed on the ground that the prohibited provision was inserted by mistake, so that, when reformed according to the real intention of the parties, it may avail in its altered condition, we perceive, at once, the equity of such an application. But to ask that a deed, void on its face, shall, nevertheless, take effect as it stands, in spite of the law, upon the ground that,  [**13]  although it is precisely such as the parties designed it should be, they acted from good motives, is virtually asking that the will of the parties shall prevail over the law; for the whole effect of the parol evidence, if admissible, is to show that the witnesses advised the insertion of the provisions which have rendered the deed void. The plain answer is, that the parol proof cannot vary the deed; it cannot expunge the provisions which the law has denounced as fraudulent, which fraudulent provisions, as this court has already decided, have rendered the deed void. The efficacy or invalidity of the deed depends not on the fact who advised the insertion of the clause, nor on the opinion of the witnesses as to its expediency and utility, but being there, it renders the deed, as it stands, void in law.

2nd. The parol testimony was not admitted without exception, as stated in the appellant's second point. It was given and received subject to all objections to its admissibility and effect. If the question depended on the quo animo, and the clause would be legal or illegal, as the motives for introduction should be found to be good or bad, there would be not only propriety, but necessity,  [**14]  for the inquiry into motives. But the law has laid down the stern rule, binding alike on the good and the bad, that no debtor shall make conveyances "to hinder, delay or defraud his creditors;" and this court has already decided that such a clause as the one in question, does violate this rule.

3rd. The discussion, again, of the questions which were fully argued and decided on the former appeal, can hardly be expected of the appellant. If the deed is void in law, it is quite immaterial whether it is void merely on the ground actually decided on the former appeal, or whether it is void, also, on any of the other grounds then discussed and not decided.

4th. The prayer did not trench upon the right of the jury; for the plaintiffs did not ask any instruction which asserted a right based on the deed. The plaintiff did not claim under, but against, the deed. It was offered by the garnishee as a bar to the plaintiff's recovery; for the defendant relied entirely on this deed to sustain the plea of nulla bona. The garnishee had offered in evidence this deed, and its factum was admitted; if valid, it sustained the plea. Whether valid or not, was a question of law. The plaintiff supposed [**15]  it to be void on its face; and, if so, then it could not sustain the plea. Now, clearly, the plaintiff had a right to ask the opinion of the court on this point of law. It is the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion of the court upon it. 1 Gill 128, Whiteford vs. Burckmeyer & Adams. Such a prayer is, in effect, like a demurrer to evidence. It concedes to the opposite party the benefit of the facts on which he relies, but denies the legal efficacy of those facts to produce the result for which they were invoked. It is the province of the court to determine the meaning and effect of written instruments. If the plaintiff had claimed under the deed, and the prayer had assumed its existence, as the basis of the instruction asked for, the cases cited by the appellant would have some application. But it was assuming nothing that belonged to the jury, to ask the court to say that the deed was void on its face.  

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

OPINIONBY:
TUCK 

OPINION:

 [*182]  TUCK, J., delivered the opinion of this court.
When this deed was before the court on the former appeal--  [**16]  7 Md. 380--it was declared void in law, for matter apparent on its face; and the cause was sent back under a procedendo. At the second trial, the defendant, now appellant, offered evidence that the clause, in reference to which this court had expressed its opinion, was inserted for the benefit of the creditors, in order to prevent loss, and that sales at auction would have produced less than was realized from the gradual sales in the usual way of carrying on the business of the grantors. The object being to remove the objection made by the court to that clause of the instrument. But, notwithstanding this proof, the court granted a prayer of the plaintiff, that "the deed is void in law," from which ruling the defendant appealed; and the question presented by this state of the case is, whether the parol proof warranted a different decision on that prayer?
We understand, from the argument, that this evidence was offered under the impression that the court, on the former appeal, declared the deed to be void because there was nothing to show that this provision was designed to operate, and did operate, for the advantage of the creditors, and it is now insisted that, such [**17]  evidence being in the record, the deed should be pronounced valid. That opinion, when considered with reference to the cases in this court upon the subject of these trust deeds, and referred to by the judge, does not admit of the interpretation now placed upon it. That the passage relied upon by the appellant's counsel, considered alone, may sustain his view, might be conceded without placing that adjudication in conflict with previous decisions. This may be the case with many opinions, if portions are separated from the context, and considered apart from the reasoning of the whole, and the principle of the cases referred to. In using the words, "as this case at present stands," the court must be understood as 

 [*183]  having reference to the validity of the transaction upon the deed alone, for we take it to be well settled that an instrument void in law, for matter appearing in the deed itself, cannot be made good by averment; and so we had decided in Green & Trammel vs. Trieber, 3 Md. 11. It was contended that the question of fraud should have been left to the jury, upon all the circumstances attending the transaction, but we answered, (page 40,) "There [**18]  is nothing for the jury to pass upon, when the court can see that the instrument is fraudulent on its face. We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares such deeds to be void, it is no matter how the question of fraud, in fact, may stand." And in 3 Md. 40, Sangston vs. Gaither, where it did not appear by the deed that the grantor, though requiring releases from his creditors, had conveyed all his property, and it was urged that he might have had other property to pay creditors, not provided for by the trust, we said, "This view of the case cannot change the character which the law gives to this assignment." So, since this case was decided, we have held the doctrine in Malcolm vs. Hodges, 8 Md. 418, that the validity of such deeds must be determined without regard to the surrounding circumstances, which, in that instance, were, that a large majority of the creditors had examined the affairs of the debtor, and concluded, unanimously, that [**19]  it would be for the advantage of all the creditors that an assignment should be made, and the deed in question was executed accordingly; and, in reference to the argument of counsel, that the grantors had derived no benefit from the reservation by resulting trust, and that the creditors were not injured by that feature of the deed, as there was no surplus, it was said, "We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face." Interpreting that part of the opinion, therefore, by the application of these 

 [*184]  principles, which are the settled law of this court, we think that the only legal deduction, from the words now relied upon by the appellant's counsel, is, that the circumstances there mentioned, which might sanction such a deed, where the grantors were manufacturers, and the power given was to work up unmanufactured materials, should appear on the face of the deed, in order that the court might determine, as a question of law looking to the deed alone, whether it was valid or void. It is [**20]  not said, nor did we mean to intimate, that the nature of the trade or business, and the effect of carrying it on, or of selling in one way or another, could be shown by parol, so as to give effect to an instrument which, in the conclusion of the opinion, we declared to be void upon its face, that the court ought so to have pronounced it, and that there was nothing left for the jury to find.
Besides, we were remarking upon the case in 5 Eng. Law & Eq. Rep. 431, and its appositeness was placed upon the hypothesis of the Messrs. Turnbull being manufacturers of oil cloths, carpets, and the like, which they have not shown themselves to be, even conceding that such evidence could aid the deed.
It does not follow, from the views we have expressed in reference to provisions of this kind, that sales must be always made immediately and for cash, whether the interests of creditors will be affected or not. The trustee may be left to the exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions. Trustees are sometimes selected by a portion of the creditors; sometimes, if not generally, by the debtor and a few who are to be preferred; and, often, most [**21]  of the creditors are informed of the transfer when it is too late to protect themselves by any other means than attacking the deed. If these assignments are fairly and bona fide made, the creditors, if consulted by the trustee, will know best how the trust should be conducted, and if sales, in any particular manner, will yield larger results, they will have the best reason for assenting to that mode. Thus the creditors can prescribe a law for the guidance of the trustee, which will fully protect him, and may accomplish for them what, under 

 [*185]  the terms of the deed, he may not be able to effect. And, where the trustee is apprehensive of difficulty, or, for any reason, desires protection in the performance of his duties, he may invoke the jurisdiction of a court of equity, and proceed under its direction.
This evidence was offered "subject to all objections as to its admissibleness and effect." A party may always, even without this qualification, ask the direction of the court upon the effect of testimony in a cause. Here the right was expressly reserved.  Whiteford vs. Burckmyer, 1 Gill 127. The prayer conceded the truth of the defendant's evidence,  [**22]  and the court, by sustaining it, in effect declared that the provisions of the deed could not be made operative by the parol proof.
It is also contended, that the factum of the deed was assumed by the prayer. It is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary where the case is tried upon admissions at the bar. The jury may discredit the testimony, but they cannot find contrary to the agreement of the parties.  Armstrong vs. Risteau, 5 Md. 256. Here the admission was for the appellant's benefit. His defence was title under the assignment, of which there was no evidence. It was admitted at both trials, and, without reliance by defendant on this concession of the plaintiff, there was no impediment to his recovery.
This deed conveys partnership property only, and the evidence shows that it embraced all of that description. There is nothing to show there was any other. The case differs from Sangston vs. Gaither, and Malcolm vs. Hodges, in this, that here the deed does not stipulate for releases. As this feature of the case was not presented at either appeal, we decline [**23]  expressing any opinion on the points it may involve; and advert to it now that this decision may not be considered a precedent in support of a like deed, if this objection should be raised hereafter.
Judgment affirmed. 

16 of 47 DOCUMENTS 

RODERICK DORSEY Adm' of DANIEL BUSSARD, vs. HORATIO HOBBS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 412; 1857 Md. LEXIS 5 

JUNE, 1857, Decided 

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

The bill in this case was filed in Baltimore county court, by Daniel Bussard, the appellant's intestate, on the 22nd of March 1824, against the appellee, for an injunction to restrain proceedings at law, instituted by the defendant upon a single bill for $ 1150, given by the complainant to the defendant on the 16th of June 1816, and payable on the 1st of October following, for the purchase money of certain property which the defendant had agreed to sell and convey to the complainant. The facts of the case as made by the bill and answer, are sufficiently stated in the opinion of this court. The injunction was granted as prayed, and the answer of the defendant was filed on the 22nd of September 1825, praying for its dissolution.

No further proceedings were had in the case, until the 21st of February 1853, when the complainant's death was suggested, and the appellant, his administrator, was made complainant in his stead. The cause was then removed to the circuit court for Baltimore county, and by an order of that court, passed on the 1st of February 1856, the motion to dissolve the injunction, was set down [**2]  for hearing on the 6th of that month. Upon the hearing of this motion, upon bill, answer and exhibits, the court, (PRICE, J.,) passed an order dissolving the injunction, except for the sum of $ 417.15, with interest, according to the judgment, and making it perpetual to that extent and for that sum. From this order the complainant appealed.  

DISPOSITION:
Decree reversed and injunction continued.  

HEADNOTES:

In the case of an unexecuted contract, for the sale of real estate, the vendee is entitled to have that for which he contracts, before he can be compelled to pay, and if the vendor has no title at the time he agreed to convey, equity will enjoin him from proceeding at law upon the vendee's bond, for the purchase money. 

COUNSEL:
Jonathan Meredith and Joseph M. Palmer for the appellant.

By the contract between the parties, the payment of the single bill and the conveyance of a good title, that is the legal estate in fee, clear of all incumbrances whatever, (10 Johns., 266, Jones vs. Gardner,) were concurrent and dependent stipulations. 5 G. & J., 254, Watchman & Bratt, vs. Crook. 1 Pet., 455, 464, Bank of Columbia vs. Hagner. 4 Term Rep., 761, Goodisson vs. Nunn. 8 Do., 207, Glazebrook vs. Woodrow. 11 Johns., 526, Judson vs. Wass. 10 Do., 266, Jones vs. Gardner. 5 Do., 179, West vs. Emmons. 8 Do., 257, VanBenthuysen vs. Crapser. Such covenants are to be construed from the intention of the parties, to be gathered from the instrument itself. One rule by which the intention of the parties is to be ascertained, is, that where [**3]  the contract is to convey on a day certain, and the vendee is to pay on the same day, the covenants are necessarily dependent. Here the bill alleges, and the answer admits, that the payment and conveyance were both to be made on the 1st of October 1816.

But whether these stipulations are to be regarded as dependent or not, is not, in our opinion, very material to the case, because of the general principle of law, that in an unexecuted contract for the sale of lands, the vendee is entitled to receive a good title, before he can be called on to part with his purchase money. This it must be remembered is the case here. The bill seeks relief against an executory and not an executed contract. The principles which apply to the one case have no application to the other, and the failure to observe this distinction constitutes the error into which the court below has fallen. The distinction is broad and familiar, and must govern the decision of this case. While the contract is executory, the purchaser has a clear right to claim of the vendor a title, clear of defects and encumbrances, before he can be compelled to pay. Rawle on Covenants for Titles, 566, 605. 2 Peere Wms., 201, Marlow [**4]  vs. Smith. 2 Ves. & Bea., 149, Sloper vs. Fish. 11 Johns., 527, Judson vs. Wass. 1 Mees. & Wels., 701, Gray vs. Stanion. 2 Mees. & Wels., 244, Duncan vs. Cafe. 2 Munf., 179, Grantland vs. Wight, and the same case in 5 Munf., 295. 11 G. & J., 489, Ragan vs. Gaither. 5 Gill, 217, Gurly vs. Hiteshue. But finally, the case of Buchanan vs. Lorman, 3 Gill, 51, is in fact and principle precisely this case. In that case the contract was executory as here; the vendee had been let into possession as is claimed in this case, though not admitted; an action had been brought for the purchase money in a court of law, as here, and the contract was rescinded and the judgment restrained by a perpetual injunction. We refer with confidence to the reasoning of the court in that case, as decisive of this.

But it has been urged, that the purchaser had knowledge of the defect of title, and that taking possession was a waiver of all objections to the title. Suppose there was notice to the purchaser of this defect, how does that affect the contract of the vendor, to convey on the day specified? It was supposed by both parties, that he would, before that time, clothe himself with the legal title. In the [**5]  case of Duncan vs. Cafe, 2 Mees. & Wels., 244, there was knowledge of such defect at the time of sale, and yet the purchaser recovered back the purchase money. Possession taken, if such was the fact, (of which however there is no proof,) with the vendor's concurrence, cannot relieve him from the necessity of giving a good title. Putting in possession, which was part of the contract, was not the whole of it: it also stipulated for the conveyance of a good title on a day specified, and the whole was to be performed before the vendor can recover. Nor is this fact of possession, if it be a fact, a waiver of all objection to the title. Waiver is a question of fact, to be collected from the intention of the parties, and from all the facts and circumstances of the case. And where possession is taken with the concurrence of the vendor, it is no waiver, or evidence of waiver, of all objection to the title. 2 Mees. & Wels., 244. 3 Swanst., 160, Burroughs vs. Oakley. 1 Pet., 464, Bank of Columbia vs. Hagner.

Alexander H. Hobbs for the appellee, argued the following points.

1st. That the appellee having received a bond of conveyance, was, on the 22nd of June 1816, possessed of an equitable [**6]  interest in the property in question, and that that equitable interest was a valuable consideration, for the single bill upon which suit was brought. 2 Story's Eq., sec. 790. 8 G. & J., 35, Miller vs. Allison.

2nd. Possession is presumed where there is no averment to the contrary, and there is no such averment in this case. 1 Bailey, 219, Carter vs. Carter. 25 Wend., 116, Tallmadge vs. Wallis.

3rd. Possession of the purchaser alone is a consideration. 17 Wend., 188, Lattin vs. Vail. 2 Parson on Contracts., 191, 192.

4th. A party taking possession of property, under a contract of warranty, knowing of a defect in the title thereof, is precluded from setting up such defect to defeat an action for the purchase money. Rawle on Covenants for Title, 527, 556. 15 Ves., 594, Fleetwood vs. Green. 1 Bailey, 217, Carter vs. Carter.

5th. The equitable owner of land, has a title superior to the lien of a judgment creditor of subsequent date. 11 G. & J., 326, Moale vs. Buchanan. 2 H. & J., 64, Hampson vs. Edelen. 1 Peere Wms., 277, Finch vs. Earl of Winchelsea.

6th. The mere fact of a sale under a fi. fa., of a judgment creditor, is not an ouster nor equivalent to an ouster.  [**7]  21 Wend., 131, Whitney vs. Lewis. 25 Do., 116, Tallmadge vs. Wallis.

7th. A vendee in possession, must be evicted before he can defeat an action for the purchase money, on the ground of the failure of consideration, and there is in this case no averment of eviction, 25 Wend., 115. 5 Cowen, 196, Miller vs. Watson. 2 Wheat., 13, Greenleaf vs. Cook. 1 Greenlf's Rep., 352, Lloyd vs. Jewell.

8th. In case of suit for the purchase money, the vendee being in possession, the breach of warranty, in part, cannot be set up to defeat the action. For redress, the defendant must resort to his action at law, that is his remedy, 2 Kent's Com., 471, 473, to 476. 25 Wend., 116. 21 Do., 135. 5 Cowen, 197. 2 Greenlf. on Ev., sec. 199. Rawle on Covenants for Title, 490 to 493, 504 to 509.

9th. Equity will not relieve a party in possession, in an action for the purchase money, where there is a defect of title, or an outstanding incumbrance and warranty; eviction at law is indispensable. Rawle on Covenants for Title, 519, 525. 1 Johns. Ch. Rep., 218, Bumpus vs. Platner. 2 Do., 521, Abbott vs. Allen. 5 Conn., 528, Barkhamsted vs. Case. 3 Monroe, 273, Hart vs. Bleight.

10th. The vendee ought [**8]  to have paid off the outstanding lien of $ 417, and deducted it from the purchase money; it was no additional burthen. 21 Maine, 150, Wentworth vs. Goodwin. 4 H. & J., 525, Ghiselin vs. Fergusson. Rawle on Covenants for Title, 504. 2 Parson's on Cont., 246, 247. Sedgwick on Damages, 474, 475.

11th. In an action for covenant on the warranty, the purchaser must aver and prove eviction, 10 Wheat., 449, Day vs. Chism.

12th. The vendee not having performed or offered to perform his part of the contract, was not entitled to a specific performance thereof, and not being entitled to a specific performance he is not entitled to an injunction. 2 Story's Eq., sec. 771. Williard's Eq. Pl., 248, 291, 292. 2 Wheat., 336, Colson vs. Thompson. 9 Mod., 37, Savage vs. Foster. 4 Gill, 472, Geiger vs. Green. 5 Do., 217, Gurley vs. Hiteshue.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*416]  LE GRAND, C. J., delivered the opinion of this court.
The bill in this case was filed by the intestate of the appellant, to restrain proceedings at law by the appellee, to recover the amount of a note or single bill of Daniel Bussard, payable on the first [**9]  day of October 1816. The facts of the case, as made by the bill and answer, may be thus stated: On the 16th day of June 1816, the appellee, Hobbs, agreed to sell to Bussard, for the sum of $ 1150, a house and lot of ground situate in Montgomery county, Bussard agreeing to pay therefor, the sum of $ 1150 on the first day of October thereafter, and Hobbs agreeing, by a written agreement under his hand and seal, to make to him "a good and lawful deed and title," and to put him in possession on the same day. Neither at the 

 [*417]  time of the contract, nor on the first day of October 1816, nor since, has Hobbs been seized of the property agreed to be sold and conveyed. He had agreed to purchase it from the father of Daniel Bussard, the party who filed the bill in this case, but never paid for the same nor received a deed for it. On the contrary, Bussard, Sen., instituted a suit for a part of the purchase money, and recovered judgment to the amount of $ 417.15, in the year 1817. Under this judgment the property was sold by the sheriff to George Kover. The note of Bussard, the complainant, not being paid at its maturity, Hobbs brought suit on it in Baltimore county court, and, subsequently,  [**10]  obtained judgment thereon. It is asserted in the answer of Hobbs, to the bill of complaint, that at the time of the making of the contract, Bussard was well aware of the fact that Hobbs had no title to the property, and that he immediately thereafter entered into possession of the premises. There is no evidence of this latter fact.
In regard to such a case as this, it appears to us there ought to be no doubt on the mind of any one, as to what should be the decision on obvious principles of equity and common sense. It presents simply this question:--Whether a person may sell a thing to which he has no title, and recover the purchase money without transferring the title to the thing sold? It would seem that, the bare stating of the question is to resolve it in the negative. Without pedantically and uselessly wandering through the whole history of jurisprudence, we confine ourselves to the adjudications of our own State, wherein will be found a complete and full disposition of the case. The contract is an unexecuted one. In speaking of such an one, the court, in Buchanan, et al., vs. Lorman, et al., 3 Gill 77, hold the following language which is conclusive of [**11]  this case, "A vendee of an estate, in an unexecuted contract, is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. The ability of the vendor to convey should exist, when his duty, by the contract, arises to convey, or at the time of a decree for a conveyance, where time is not of the essence of the contract. And we conceive it to be equally clear, that a vendee is not 

 [*418]  bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to procure his title. These principles are so obviously just, that they must be considered as resting at the foundation of every well regulated system of equity."
Almost any number of cases, both from the English and American authorities, might be adduced in support of the doctrine which we have taken from 3 Gill. We omit any notice of them, because the case to which we refer, is so apposite and conclusive as to dispense with any necessity for further citations. The two cases are identical in their leading and controlling facts and principles. We think the circuit court erred in not continuing the injunction to the whole claim, and [**12]  shall accordingly reverse its decree, and pass one, continuing the injunction.
Decree reversed and injunction continued. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J., delivered a separate concurring opinion.
The great lapse of time since the granting of this injunction, without a motion, on the part of the appellee, to dissolve it, until very recently, has much influence with me in coming to the conclusion, that the decision below should be reversed, and the injunction continued.  

17 of 47 DOCUMENTS 

WM. MCCANN vs. GEORGIANA TAYLOR & others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 418; 1857 Md. LEXIS 6 

JUNE, 1857, Decided 

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

The bill in this case was filed by the appellees, the wife and infant children of Charles R. Taylor, on the 11th of December 1856. It alleges, that Taylor and wife, on the 15th of September 1852, executed a deed of trust to William J. Ward and others, of certain lands in the city and county of Baltimore, for the sole and separate use of the wife, during the joint lives of herself and husband, and after the death of either, in trust for the survivor, so long as he or she shall remain unmarried, with remainder in trust for their children; that this deed, thus executed by the grantors, was delivered to Ward, with instructions to procure it to be executed by the grantees, and then deliver it to the wife, that she might have it duly recorded, but from misapprehension or inadvertence on her part, or some other cause which the complainants cannot explain, but certainly, as they are assured and verily believe, from no purpose or intent to defraud, hinder or delay the creditors of the husband, and from no improper motive whatever, it was not recorded until the 17th of April 1854; that at the time of its execution, the husband owned property [**2]  of large value over and above that conveyed by the deed, had retired from business, and his debts were small and far less than the value of his property not included in the deed; that at the time of its enrollment the husband had not resumed business, his debts were small in comparison with the value of his available means, occasioned no inconvenience to him, and he entertained no apprehension of his ability to meet all his engagements as they should mature, out of his property not covered by the deed. The wife then avers, that she had no doubt this deed was made in good faith by her husband, and, therefore, united with him in its execution, thereby relinquishing her dower in the property conveyed by it, and on subsequent occasions has united with him in conveyances of other portions of his real estate, for the purpose of facilitating his business operations, and more recently to provide for payment of his debts, and she is therefore advised she is a purchaser for a valuable consideration of the interests reserved by this deed to herself and children, and being certainly free from the imputation of fraud or impropriety on her part, and having no notice of any fraudulent or improper [**3]  motive on the part of her husband in the execution of this deed, she insists that these interests cannot be impeached at the instance of any of her husband's creditors, and more especially of any creditor who became such after the enrollment of the deed.

The bill then charges and avers, that McCann recovered a judgment against the husband at March term 1856 of the circuit court for Baltimore county, for $ 1066.61, with interest from the 5th of March 1856, and costs, and has caused execution to be issued thereon, and has levied the same on the property conveyed by the deed, and is about to sell the same under this execution; that the complainants have understood that McCann pretends that this deed was made in fraud of the creditors of said Charles, hoping and desiring thereby to cast suspicion upon its validity, so that there may be a sale of the estate at a gross undervalue; that this judgment was recovered upon a note of the husband, dated the 13th of February 1855, at four months, after the execution and recording of the deed, and that McCann had actual notice of the making and enrollment of the deed before the time of his becoming a creditor as aforesaid; that McCann well knows [**4]  that the complainants have no moneys wherewith they might assist to pay off this judgment, and will be unable to prevent a sacrifice of their interests in the property as is contrived and intended by him, except by the interposition of the court for their protection; they submit, that McCann becoming a creditor subsequent to the enrollment of the deed, and with notice thereof, ought not to be permitted to proceed with his execution to a forced sale of the property to the sacrifice thereof, and the irreparable injury of the complainants, but ought to be compelled to institute a proceeding to determine the validity of the deed, so that in case it may be adjudged fraudulent as against creditors, provision may be made for the satisfaction of those aggrieved, by a sale of an adequate part of the property, and the residue secured to the complainants; that on the 9th of July 1855, the husband conveyed his contingent interest in the property embraced in the deed to Frederick Schumacker, for the consideration of $ 1250.

The bill then prays for an injunction, to restrain McCann from enforcing his execution by a sale of any part of the property conveyed by the deed, and for general relief,  [**5]  and makes McCann, the trustees in the deed, (one of whom was Frederick Schumacker,) parties defendants.

On the day the bill was filed, the court, (KREBS, J.,) ordered the injunction as prayed, upon a bond being filed in the penalty of $ 1000, and this having been done the writ issued restraining McCann from enforcing his execution by a sale of any part of the property conveyed by the deed. On the 20th of December 1856, McCann filed his answer and entered a motion to dissolve the injunction, which was set down for hearing on the 7th of January following, but subsequently, on the 28th of January 1857, he entered an appeal from the order granting the injunction, and gave bond to prosecute his appeal, in the penalty of $ 15,000, fixed by the court, and then proceeded to enforce his execution, by causing the sheriff to advertise the property for sale on the 2nd of March 1857. The complainants then, on the 11th of February 1857, filed a petition in the court below, charging that this proceeding of McCann was a breach of the injunction, and praying an attachment against him for contempt, but the court, on the 26th of the same month, dismissed the petition, and from the order of dismissal [**6]  the complainants appealed.

On the next day the complainants, (the record on McCann's appeal having been transmitted to the appellate court,) through their solicitor, applied to the Court of Appeals, then in session, by way of petition, alleging, among other things, that their petition in the court below for an attachment had been dismissed by that court, on the ground that the injunction was virtually dissolved or superseded by McCann's appeal, and praying that he might be restrained from proceeding with his execution pending his appeal, and until the Court of Appeals shall have determined whether the injunction ought to be dissolved or continued.

Upon this application the Court of Appeals, (LE GRAND, C. J., ECCLESTON and TUCK, J.,) ordered the petition to stand for hearing on the 17th of March 1857, "and in the meantime that the appellant, McCann, suspend all further proceedings in enforcement of his execution by a sale of the property in the proceedings mentioned, as having been conveyed by" the deed above referred to, "provided that a copy of this order and of said petition be served on the said appellant on or before the 5th of March next." Service of this order and petition [**7]  having been duly made, the matter of the petition was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

A bill alleged, that a husband executed a deed of certain property in trust for his wife and self during life, with remainder in trust for their children, that at the time of making it he was fully competent to do so because, if indebted at all, he was so only to a very small amount, and retained property in value greatly above any such indebtedness, that the defendant obtained judgment against the husband upon a note executed after the enrollment of the deed, and with actual notice of its existence, and has caused execution to be issued on this judgment, and to be levied upon the property conveyed by the deed, pretending that it was fraudulent as to creditors, and desiring thereby to cast shadows and doubts upon the title, so that there may be a sale of the property under the execution at a gross undervalue, to the irreparable injury of the complainants, who were the wife and infant children of the husband. HELD, that the case thus made authorised the granting of an injunction to restrain execution of this judgment.

Upon an appeal from an order granting an injunction, the appellate court is confined to the case made by the bill; the answer cannot be considered.  

COUNSEL:
Thos. S. Alexander, in support of the petition, argued:

1st. The complainants below, who are the wife and children of Charles R. Taylor, claim the benefit of a conveyance made by Taylor to trustees in trust for their benefit. They charge that the appellant became the creditor of Taylor after the execution of the deed of trust and with notice thereof. On the authority of McDowell vs. Goldsmith, 6 Md. Rep., 319, he is not in a position to impeach the deed as a fraud on creditors. The bill further charges, that he pretends that the deed is fraudulent, and has levied his execution on the entire trust estate, which is very valuable, in the expectation that whilst the title is thus clouded by his pretences, he may purchase it at a gross undervalue. On this is grounded the equity of the complainants. In the present state of the case it must be assumed that the injunction was rightfully issued.

2nd. The only question of difficulty involves the construction of the act of 1853, ch. 374. Prior to the year 1835 an appeal would not lie from an interlocutory [**8]  order granting or continuing an injunction. By chaps. 346 & 380 of the act of that year, an appeal is granted in such cases, and, as the latter act supersedes the inconsistent provisions of the former, where the plaintiff had failed to give bond on obtaining the injunction, the defendant, by entering his appeal, might suspend the operation of the injunction, provided he gave bond in the penalty and with condition to be prescribed by a judge of the Court of Appeals. By necessary implication, where the plaintiff had given bond, the defendant's appeal, though accompanied by bond, would not suspend the effect of the injunction.

The act of 1853 provides, that an appeal from an order granting or continuing an injunction shall not operate to suspend the injunction in any case, unless the defendant, at the time of entering his appeal, shall give bond, with a condition prescribed by the act, and in a penalty and with security, to be approved by the judge granting the injunction, or the clerk of the court out of which it issued. The act does not declare that in all cases where such bonds are given the injunction shall be suspended, but that the appeal shall not operate to suspend the injunction [**9]  in any case, unless bond is given in the prescribed manner and form. Hence it results, that where the plaintiff has failed to give bond in obtaining the injunction, the defendant may supersede the injunction by entry of an appeal, and giving bond as prescribed by the act of 1853, but that if the plaintiff had given bond his injunction cannot be superseded by the entry of an appeal and the giving of such bond. The first object of the act, therefore, was to substitute a new form of security in the place of that which had been allowed by the act of 1835, ch. 380.

The next object of the act was to determine the precise effect of the appeal in the case provided for by the previous clause. And upon giving such bond--not in any and every case, but in a case in which, by the preceding clause of the act, the defendant was entitled to give bond to stay the operation of the injunction--the appeal shall operate in the same manner (that is, to the same extent as a supersedeas) as appeals do from final decrees. It is not to be imagined that the Legislature, after limiting the operation of the preceding clause to the specific case where the plaintiff had failed to give bond on obtaining his [**10]  injunction, intended to render this limitation nugatory, and to embrace within its scope the distinct case, wherein the plaintiff, by giving bond, had protected his injunction against the effect of the defendant's appeal. Cases of injunctions to stay waste are expressly excepted by the act of 1835, ch. 380. This exception is not incorporated into the act of 1853. Is it not a part of the act by necessary implication, or will it be insisted that a defendant, by appealing and giving bond in the form prescribed by the act of 1853, can suspend the operation of an injunction to stay waste? Such consequences must inevitably flow from the construction put on the act by the appellant. Again, it is to operate "in the same manner as appeals do from final decrees." But what kind of final decrees? There may be a final decree awarding simply payment of money, or specific performance of an agreement, or a divorce, or a perpetual injunction. And if we may assume that an appeal from a decree for payment of money will stay execution of the decree absolutely, that an appeal from a decree granting to the wife a divorce will not renew her duty of cohabitation, and that an appeal from a decree awarding [**11]  a perpetual injunction will not, in any sense, impair the effect of the injunction; the inquiry is pregnant, to what class are we to refer for the purpose of determining the precise effect of an appeal from an order interlocutory, awarding or continuing an injunction? And the answer is obvious: to the class which includes a final decree awarding a perpetual injunction. The unmistakable object of this clause of the act is, to assimilate the status of the parties to an appeal from an interlocutory order granting or continuing a provisional injunction, pending the appeal, to the status of parties, to an appeal from a final decree awarding a perpetual injunction, pending an appeal from such final decree. And by parity of reason, as the act of 1835, ch. 380, of which the act of 1853, ch. 374, is amendatory, and the preceding clause of this last act professes to regulate appeals from orders appointing a receiver, the last clause of this last act is to be construed so as to assimilate the status of parties to an appeal from an interlocutory order appointing a receiver, pending the appeal, to the status of parties, to an appeal from a final decree appointing a receiver, pending an appeal from [**12]  such final decree. The question then is, what is the effect of an appeal from a final decree awarding a perpetual injunction? Is the injunction thereby avoided? or does its vigor remain unimpaired?

In Thompson vs. McKim, 6 H. & J., 333, it was declared, that an appeal does not ordinarily stay the operation of the order from which the appeal is taken. It would seem to be, therefore, sufficient to insist that there is no precedent in England or in this State in favor of taking an appeal from a final decree awarding a perpetual injunction, out of the operation of the general rule. The practice of our courts was originally framed by analogy to the provisions of the act of 1713, ch. 4, relating to judgments at law, and is now more certainly warranted by the provisions of the act of 1826, ch. 200, which extends equally to judgments and decrees. But it is to be observed, in the first place, that the expressions in these acts are negative, that no judgment or decree should be stayed unless bond be given, and not affirmative, that execution of any judgment or decree shall or may be stayed or delayed by the party giving bond. In the next place the letter of these acts is limited to the [**13]  mere ordinary cases of judgments or decrees for payment of money or delivery of property. Thus the penalty of the bond is to be double the sum of money recovered, or double the value of the property directed to be delivered; and the condition is to be for payment of the sum of money or delivery of the property, &c. &c. Other cases, doubtless, which are not within the letter have been brought within the purview of these acts by equitable construction thereof. But an appeal from a decree awarding a perpetual injunction is equally unaffected by the letter of the statutes, and the precedents of the court. Indeed the jurisdiction of the court to interfere by injunction to prevent irreparable injury, could not exist practically and beneficially in association with the right of the defendant to supersede the injunction by entering an appeal from the order by which it is awarded or continued. The appeal bond would afford a very inadequate remedy against the threatened wrong, which we are to assume is incapable of compensation in damages. Cases may be imagined in which the continuance of an injunction for a very brief space may occasion grievous injury to the party against whom it is directed.  [**14]  The protection against the unjust application of the processes of the court is to be found in its discretion to impose terms or conditions on the party asking for the grant or continuance of the injunction, and I do not deny the authority of this court, or of the inferior court, in many special cases, to stay the operation of the injunction pending an appeal, if such supersedeas can be allowed without defeating the object of the application.

Every consideration of general convenience is in favor of this construction of the act, which is likewise sustained by the anomalous state of the law, which would be effected by giving to it a different interpretation. As the law now stands a complainant whose injunction is dissolved on consideration of bill and answer, may reinstate the injunction by entry of an appeal from the order of dissolution. If it is assumed, that the injunction being continued after the coming in of the answer may be superseded by the appeal of the defendant from the order by which the injunction is continued, it will result, that a party whose equity is sworn away by the defendant's answer, receives protection which would be denied to one whose equity was confessed [**15]  by the answer.

3rd. An appellate tribunal must have the power, inherent and essential to the exercise of its jurisdiction, to determine the status of the parties and of the subject matter pending an appeal, else the object of the appeal may be defeated. In Thompson vs. McKim, 6 H. & J., 302, at the instance of the appellant, this court ordered a stay of execution of the order from which the appeal had been taken, upon the very intelligible ground, that the execution of the order might have occasioned irreparable injury to the appellant. In this case the application is made by the appellee. But the principle is the same. If the appellant is permitted to contemn the authority of the order from which the appeal is taken, the subject matter of the appeal may be destroyed, the object of the suit may be defeated, and this court may find that its jurisdiction has been invoked to aid the appellant in the perpetration of an irremediable wrong. It is the duty of this court, in common with all others, to have a care that its authority shall not be perverted to the purposes of injustice. All laws relating to appeals, whether they refer to the persons by whom an appeal may be taken, or the [**16]  time for entering an appeal, or the manner of prosecuting the same, the status of person or property to be affected by the appeal, or the form or effect of the judgment to be rendered on the hearing, or the mode of enforcing such judgment, must, of necessity, be interpreted and enforced by this court. This court must have the discretion likewise to determine the appropriate time and manner of intervening in the exercise of its jurisdiction, and, as a general proposition, it may be asserted, is bound to intervene at that stage of the cause and in such form as may be most conducive to the general purposes of justice. It cannot prescribe to itself any rule of procedure which will practically cast on the inferior tribunals the authority of passing definitively on the construction of any laws which relate in any degree to the subject of appeals. But if we are entitled to the judgment of this court in construction of the act of 1853, at what other time, in what other manner, is the question to be presented? It cannot be discussed at the hearing of the appeal on its merits, for it is not presented by the record brought up by the appellant. And it may be added, if the appellant is at liberty,  [**17]  in the meantime, to act on his own construction of the act of 1853, or on the construction, placed on it by the court below, the ultimate judgment of this court in our favor will be valueless. In short, if this court cannot now construe the act of 1853, and enforce such construction, the suitor will be practically deprived of his constitutional right to appeal from any order of an inferior court, passed professedly in contravention of that act.

James Malcolm against the petition.

The act of 1853, ch. 374, provides "that in all cases where an appeal is taken from any order, either granting an injunction or appointing a receiver, or from an order refusing to dissolve an injunction, the operation of such an order shall not be stayed in any case unless the party praying the appeal give bond with security," &c., "and upon the giving of such bond the appeal shall stay the operation of all such orders, in the same manner as appeals do from final decrees." The language of this act seems too clear for doubt. It applies to all cases of appeals from orders granting injunctions, appointing receivers and refusing to dissolve injunctions, and says, that from any such order an appeal shall [**18]  not stay its operation unless bond is given, but upon giving the bond the appeal shall stay the operation of all such orders.

After the case was thus argued upon this petition, it was held under a curia, and before a decision was made, the appeal of McCann, from the order granting the injunction, and that of the complainants from the order dismissing their petition for an attachment, came up for hearing, and were argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

The appeal of the complainants involves the construction of the act of 1853, ch. 374, and the argument upon this was as above stated: upon the appeal of McCann.

James Malcolm for the appellant, argued:

That the case presented by the bill was not a case for an injunction, because there could be no irreparable damage done to the complainants by a sale under the execution referred to in the proceedings, for if the deed is fraudulent and void no damage could be done them, and they had no standing in a court of equity, and if the deed is valid, then the appellant had a right to sell Charles R. Taylor's interest in the property; and all that the execution purports to sell, is his interest whatever [**19]  that may be. The proposition of the bill is to establish the doctrine, that if a party makes a fraudulent conveyance, the creditors must file a bill or institute a proceeding to test the bona fides of the deed sought to be attacked, and if it is found to be valid, the party takes nothing by his proceeding, and if fraudulent then he only receives sufficient to pay his claim, and nothing for his trouble and expense, and the balance is secured to the fraudulent grantee. We insist that the contrary doctrine has been established in this court by the express decision in Spindler vs. Atkinson, 3 Md. Rep., 409. See also, 17 Conn., 493, Owen vs. Dixon. If enforcing this execution was any clouding of the title, it was such as every creditor by his execution has the right to make of his debtor's property. The bill does not make a case of irreparable damage, for even if the deed is valid no damage could be done the complainants, for we could only sell Taylor's life interest in the property.

Thos. S. Alexander for the appellees.

The merits of this appeal must depend on the case made by the bill. The answer forms no part of the record on the hearing of an appeal from an order granting [**20]  an injunction. 5 Md. Rep., 472, Alexander vs. Worthington. The case may, therefore, be rested on the averment, that McCann became a creditor subsequent to, and with notice of, the deed of trust, and being a subsequent creditor he cannot impeach such a conveyance. 5 Gill, 449, Worthington vs. Shipley. 6 Md. Rep., 172, Worthington vs. Bullitt. Ibid, 319, McDowell vs. Goldsmith. The case of Warnick vs. Michael, 11 G. & J., 153, affirms the power of a court of equity to issue an injunction in such a case as this, and the same decision was made by Chancellor Bland. These cases show, that such is the law of Maryland whatever it may be elsewhere, and there is nothing in the case of Spindler vs. Atkinson, to controvert this position; for in that case the creditor who was enforcing his execution became such prior to the deed.  

JUDGES:
LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*429]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the circuit court for Baltimore city, granting an injunction restraining the execution of a judgment obtained by the appellant against Charles R. Taylor, the husband of Georgiana, one of the appellees. Under [**21]  the decisions of this court, on this appeal, we are confined to the case made by the bill.  Wagner vs. Cohen, 6 Gill 97. Guyton vs. Flack, 7 Md. 398. Alexander vs. Worthington, 5 Md. 471.
The bill, in substance, states this case:--That Charles R. Taylor made a deed of certain property, in trust for his wife and self during life, provided the survivor should remain unmarried, with remainder in trust for their children; that the 

 [*430]  note on which the judgment was rendered is dated subsequently to the deed, and that at the time of making said deed of trust, Taylor was fully competent to do so, because, if indebted at all, was so only to a very small amount, and retained the ownership of property largely in value beyond any such indebtedness; that although the deed of trust was not left for record until the lapse of nineteen months after its date, yet, it was of record at the time of the execution of the promissory note on which the judgment was rendered, and besides which McCann had notice of its existence. The bill then avers, that the appellant, as is understood by the complainants, desiring to possess himself of [**22]  the property mentioned in the deed, pretends it was made to defraud and hinder Taylor's then and subsequent creditors, hoping and designing thereby to cast shadows and doubts upon the title to the property and thus diminish its value at a sale under the execution, which he has caused to be issued on his judgment. This is, substantially, the case presented by the bill, and to it must be limited the view of this court. So confining it we see nothing which does not justify the action of the court below. The bill undoubtedly makes a good case. It avers bona fides, competency of Taylor to make the deed, notice of its existence to McCann by its registration, and irreparable damage to the appellees by the execution of the judgment. Looking to the face of the bill there is nothing to militate against the force of these circumstances, except it be the failure to record, in proper time, the deed. This fact, although not very satisfactorily explained in the bill, is not of any great importance in this case, the bill averring knowledge on the part of McCann, of its existence. Conceiving the bill to have made a good case, we accordingly affirm the order appealed from and remand the cause for [**23]  further proceedings. When the case is brought to issue, possibly circumstances may be shown annihilating the equity set up in the bill.
It must be borne in mind, that this case is different from that of Spindler vs. Atkinson, 3 Md. 409. There, the debt was created prior to the deed, whilst in this case, it was subsequently incurred. We deem it unnecessary to allude to 

 [*431]  the other subjects discussed by counsel, reserving the expression of opinion in regard to them until the case shall, if ever, come before us again.
The case made by the application of the appellees to this court to suspend the execution of the judgment until its opinion should be pronounced on the petition filed, need not now, after what has been said in this case, be passed upon. Of course we are not to be understood, as denying the right of McCann to dispose of the life estate of Taylor in the property. Although the bill alleges that it had been conveyed to Mr. Schumaker, yet, that person is no party to this proceeding, and, therefore does not invoke the protection of the court. If his title be good, the purchaser would take nothing; if not good, then he would acquire, in the absence [**24]  of other claimants, the life interest of Taylor. These observations are made to avoid misapprehension in regard to what we have previously said.
Order affirmed.
ECCLESTON, J., dissented.  

18 of 47 DOCUMENTS 

WILLIAM TUCKER, and others, vs. THE STATE, use of THOMAS H. KNEIGHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 322; 1857 Md. LEXIS 40 

DECEMBER, 1857, Decided 

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

This was an action of debt, brought by the State on the 22nd of March 1854, upon an appeal bond, dated the 24th of May 1853, in which the appellants, the defendants below, were sureties for Thomas R. Tongue, the principal obligor. This bond was executed to the State, in the penalty of $ 2000, and they condition is as follows:

"Whereas the above bound Thomas R. Tongue, thinks himself aggrieved by a judgment rendered against him this day, by Stephen L. Lee, esquire, one of the justices of the peace for the said county, at the suit of the said State of Maryland, for the sum of two thousand dollars debt, and eight dollars and seventy-five cents costs, from which judgment the said Thomas R. Tongue is about to appeal to the next county court for Anne Arundel county, before the judges thereof: Now the condition of the above obligation is such, that if the said Thomas R. Tongue shall not prosecute his appeal at the county court for Anne Arundel county, next succeeding the date of this appeal bond, with effect, according to the directions of the act, entitled, An act for the speedy recovery of small debts out of court, and to repeal [**2]  the acts of Assembly therein mentioned, and also pay and satisfy the said State of Maryland, her executors, administrators or assigns, in case the said judgment shall be affirmed, as well as the debt, damage and costs, adjudged by the said Stephen L. Lee, as also all costs and damages that shall be awarded by Anne Arundel county court, when the said appeal shall be heard, tried and determined, then the above bond to be and remain in full force and virtue, otherwise to be of none effect."

The declaration was in the common form, making profert of the bond but not setting out the breaches. The defendants craved oyer of the bond and condition, which was granted them, and they then pleaded general performance, to which the State replied, that Tongue did not prosecute his appeal with effect. To this replication the defendants rejoined:

1st. That the bond was not stamped as required by law.

2nd. That no such judgment as that described in the bond was ever rendered.

3rd. That after the making of the bond, the State, by its release in writing, released to Tongue the forfeiture in the case of the State against Thomas R. Tongue, charged with a violation of the act of 1836,  [**3]  ch. 150, and its supplements, and tried on said appeal from the judgment of Stephen L. Lee, the justice of the peace, at October term 1853, of the Circuit court for Anne Arundel county, which case was the judgment which should have been referred to in the said bond.

4th. That at the time of the execution of the bond, there was not, nor has there been since, any such county court for Anne Arundel county, before the judges of which Tongue could have prosecuted his appeal.

5th. That the judgment specified in the bond, was not affirmed by the judges of the county court for Anne Arundel county.

6th. That the judgment referred to was a judgment of condemnation, that the vessel of Tongue should be forfeited to the State, which judgment was affirmed by the proper court on appeal, and that Tongue has ever been, and is now, ready and willing to surrender said vessel so condemned to the proper officer of the State, but that the State refuses to receive it, and has released the claim against the same, as appears by the release.

7th. That Tongue did prosecute his appeal with effect, and that the judgment was not affirmed according to the condition of the bond.

The State [**4]  then filed a general demurrer to the 1st, 2nd, 3rd, 4th and 6th counts in the rejoinder, which demurrer the court, (BREWER, J.,) sustained, and the case was then tried before a jury, upon issues joined upon the 5th and 7th counts of the rejoinder.

Exception. The defendants to maintain the issues upon their part joined, offered in evidence the original proceedings, upon an appeal taken by Thomas R. Tongue, from a judgment of Stephen L. Lee, a justice of the peace for Anne Arundel county, condemning a vessel of said Tongue, for a violation of the act of 1836, ch. 150, relating to the navigation of vessels by negroes, rendered on the 24th of May 1853. These proceedings consist of the warrant to seize the vessel, purporting to have been issued upon the information and oath of Thomas H. Kneighton, the return thereto of the seizure by said Kneighton, constable, the summons to Tongue the owner, the judgment of condemnation, the appeal bond sued on in this case, and the record of the affirmance of the judgment of condemnation by the circuit court for Anne Arundel county. They then called up Stephen L. Lee, and offered to prove by him that these are the proceedings referred to in the appeal [**5]  bond, and are the only proceedings ever had before him as a justice of the peace, between said parties and the State, and that the appeal bond sued on in this case, was executed and filed by Tongue to stay execution of this judgment. They also offered to prove by the clerk of the circuit court for Anne Arundel county, that these proceedings and bond are the only proceedings and bond in his office, between the parties to this suit. The plaintiff objected to the admissibility of these proceedings, and the testimony of Lee and the clerk so offered to be given, which objection the court sustained. To this ruling the defendants excepted, and the verdict and judgment being against them, appealed.

The transcript of the record, sent up to this court, is endorsed William Tucker, and others, vs. The State, for the use of Thomas H. Kneighton, for the use of James S. Franklin, but, in the record itself, the suit appears to have been brought and conducted to final judgment, in the name of the State alone.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Where demurrers are ruled against the party appealing, and the verdict and judgment on the issues are against the same party, the appeal from the final judgment brings up for review, in this court, the rulings upon the demurrers.

Upon an appeal bond, conditioned to prosecute an appeal from a judgment of a justice of the peace to the "county court for Anne Arundel county," no recovery can be had, there being, at the time the bond was executed, no such court in existence.

Parties are not estopped by the recital in a bond, from denying that there was no such court as that recited in existence: whether a court exists or not depends on the constitution or laws, and when this court can see that the supposed tribunal is not known to these, it must so decide, no matter what the parties may have admitted by estoppel or agreement.

By profert of a bond, and the grant of oyer of the bond and condition, they are made part of the declaration.

The appellate court must take judicial notice of the tribunals created by the constitution.

An appeal bond, on which no recovery can be had by the obligee, cannot operate to stay execution of the judgment appealed from.  

COUNSEL:
Alex. B. Hagner and Alex. Randall for the appellants, argued:

1st. The third and sixth counts of the rejoinder raise the question as to the effect of the release [**6]  of the forfeiture by the State? The demurrer admits there lease by the State, and we insist that a release by the plaintiff in an action, is a bar to the recovery. The State is the actual plaintiff in this suit; all the pleadings are in her name alone, and are signed by the State's Attorney; there is no entry in the case of a use; the bond and its recitals all mention the State as alone interested, and the proceedings under the act of 1836, ch. 150, are clearly in the nature of criminal process at the instance of the State. The second section of this act provides, that the vessel "shall be forfeited, or the value thereof, one half to the State and the other half to the informer, to be recovered as hereinafter provided;" and the sixth section gives the right of appeal from the judgment of condemnation by the magistrate, upon the party's "entering into bond to the State of Maryland, with a penalty of twice the value of said vessel." The act does not authorize the informer, or any other person, to institute a suit, in the name of the State, upon this appeal bond, and, in the absence of such authority, no such person can put it in suit. 10 Wheat., 406, Corporation of Washington vs. Young.  [**7]  It is only by special provisions of law that suits can be brought by individuals upon bonds given to the State, and in most of our statutes authorizing such bonds to be given, it is expressly provided that suits may be so brought by individuals. The only exception to this rule is where a consistent and uniform practice to the contrary, for twenty years or more, can be shown to exist. But no such practice can be shown in this case, for the law was only passed in 1836, and this complaint was made in 1853, and is, perhaps, the first attempt to execute it. But, again, the State had the right to release the interest of the informer as well as its own, and its release of the forfeiture extends to the share of the informer. 10 Wheat., 246, United States vs. Morris. 6 Pet., 404, McLane vs. The United States.

2nd. The appeal bond was executed in May 1853, at which time there was no "county court for Anne Arundel county," before the "judges of which" the appeal could have been prosecuted by Tongue. The doctrine of estoppel cannot apply to such errors as these, for they are not stated by way of recital. 1 Greenlf. on Ev., sec. 26. 8 G. & J. 319, Steam Nav. Co., vs. Dandridge. The failure [**8]  to prosecute in the county court, was a condition precedent to the bond being of any effect, and this condition being impossible, the bond was void, and no recovery can be had upon it. 1 Md. 135, Manly vs. The State. 10 Md. 168, Coleman vs. The State. 5 Md. 503, Collins vs. Carman. 1 Bac. Abr. Title Condition, (M.) 2 Thos. Coke, 26. 1 Pothier on Obligations, 101. 1 Salk., 172, Pullerton vs. Agnew. 2 H. & G., 82, Birckhead vs. Saunders. 5 H. & J. 61, Morgan vs. Blackiston. 4 G. & J. 395, Morgan vs. Morgan. 1 H. & J. 499, Johnson vs. Goldsborough. 12 How., 176, Bein vs. Heath. 1 Scammon, 568, Brooks vs. Town of Jacksonville. 5 Gilman, 88, Sharp vs. Bedell. 5 Cowen, 286, Ex-parte Weed. 6 Cowen, 585, Ex-parte Alord. 2 Yerger, 522, Eason vs. Clark. 3 Wend. 426, People vs. Monroe Court. 1 Brevard, 3, Harville vs. Meyers. 2 Const. Rep., 740, Darby vs. Hunt.

3rd. The appeal from the judgment brings the demurrers before this court as well as the ruling upon the exceptions. 1 Md. 77, Lawson vs. Snyder. 4 Gill 163, Thompson vs. The State.

4th. That the court erred in excluding the testimony set out in the exception. Under the issues the jury were to find,  [**9]  "that the judgment rendered by Stephen L. Lee, as specified in the bond," was affirmed "by the judges of the county court for Anne Arundel county." The testimony offered, showed that the only judgment ever rendered by Lee, between the parties, was averred to be that "specified in the bond," and that the "judges of the county court for Anne Arundel county" never could have affirmed it. It was, therefore, relevant to the issue, and should have been submitted to the jury for their consideration. Even if the purpose for which it was offered had not been stated, it would have been error to reject it, if admissible for any purpose. 9 Gill 209, Taney vs. Bachtell.

5th. If the court reverse upon either ground, they will not award a procedendo. 4 Gill 406, Stockton vs. Frey. 4 G. & J. 395, Morgan vs. Morgan.

Jas. S. Franklin for the appellee, argued:

1st. That there was no error in the ruling of the court, as set out in the exception:--1st. Because all evidence unnecessary and not relevant to the issues, should, on application, be excluded by the court. The evidence offered was not necessary to the elucidation of the issues on the 5th and 7th counts of the rejoinder,  [**10]  because the recited record of proceedings exhibited the affirmance of the judgment of the justice of the peace, and instead of tending to show a prosecution of the appeal to a successful termination, showed an entire failure so to do. 2nd. It was further unnecessary, because the plaintiff had not offered any evidence or assumed any position tending to show that there had been other proceedings in either court. And 3rd. Even if this ruling were erroneous, this court will not reverse, no injury having been sustained by the appellants, it not appearing for what object the testimony was offered, or could serve, and no announcement made of an intention to follow it up with other proof. 9 G. & J. 439, Union Bank vs. Planters Bank. 4 Md. 429, Cross vs. Hall.

2nd. As to the demurrers it is insisted, that after judgment on the same, in favor of the appellee, from which no appeal was taken in the court below, these demurrers are not open for review in this court, the only appeal taken being from the general judgment rendered by the court upon the verdict. 1 Md. 10, Milburn vs. The State. 9 Gill 101, State vs. Milburn.

3rd. But if the judgment on the demurrers is open [**11]  to review, it is insisted there was no error in the ruling of the court upon all or either of them:--1st. Because the defendant was estopped from denying the judgment recited in the bond. 4 Gill 191, Lloyd vs. Burgess. 2nd. Because the State had no right to release more than her own share, and it was competent for the informer, who, under the act of 1836, ch. 150, was entitled to one-half, to use the name of the State in prosecution of his interest on the bond. It is not essential that the State should have an interest, in order to sustain an action for the use of a party interested, as in the instance of administration, testamentary and trustees' bonds. 3rd. Because the party is estopped to deny the recitals in the bond, but if not estopped, the condition only is void, and the penal points of the bond remain obligatory. Hurlstone on Bonds, in 9 Law Lib., 11, 12. And 4th. Because if not so estopped, the bond substantively describes the court; the circuit court for Anne Arundel county is still the court for the county, or the county court, and this court will so construe the condition as to carry out the intention of the parties. Hurlstone on Bonds, 18. 8 Barn. & Cress., 299.  

JUDGES:
The [**12]  cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*329]  TUCK, J., delivered the opinion of this court.
The appeal from the final judgment, authorises this court to review the rulings of the court below on the demurrers. Lawson vs. Snyder, 1 Md. 71, is a case directly in point.
In deciding the issues of law, we are not confined to an examination of the rejoinders to which the plaintiff demurred, but must consider the previous pleadings.
By profert of the bond and the grant of oyer of the bond and condition, they are made parts of the declaration, ( Birckhead vs. Saunders, 2 H. & G. 82,) looking to which, we see that the same question arises that is presented by the fourth rejoinder.
This court must take judicial notice of the tribunals created by the constitution, and as there was no Anne Arundel county court, and as the parties are not responsible beyond the condition which they have undertaken to perform, it follows, that there was no court before which the appeal could have been prosecuted. If the State, instead of assigning the breach in the short form, as in Karthaus vs. Owings, 2 Gill & Johns. 430, [**13]  had replied, that the judgment appealed from had been affirmed in the Circuit court for Anne Arundel county, the court must have held that such a breach was not within the contract declared on by the plaintiff.  Morgan vs. Morgan, 4 G. & J. 395. And if the replication had shown the affirmance of a judgment of condemnation, under the act of 1836, ch. 150, even in Anne Arundel county court, it would have appeared to be a different judgment from the one recited in the appeal bond, which is a money judgment for two thousand dollars. In either aspect of the obligation, under that form of assigning the breaches, the action must have failed.  2 H. & G. 82. Morgan vs. Blackiston, 5 H. & J. 61. If the 

 [*330]  same objection appears on the record in another form of pleading, can the result be different? Surely not.
The principle which we think must govern this case, was established in the cases of State vs. Manly, 1 Md. 135, and Coleman vs. State, 10 Md. 168. In the first of these, an order was passed removing a prosecution from Baltimore city court to Howard county court, and the traverser was recognised [**14]  to appear before that court. The record was transmitted to the court of Howard district of Anne Arundel county, to which, doubtless, Baltimore city court designed to have removed the prosecution, but the judge of that court, denying its jurisdiction, refused to forfeit the recognizance, and remitted the record and prisoner to Baltimore city court, which ruling was affirmed; on the ground that, "there being no such court in existence, the order of removal and the recognizance were null and void. And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal." In the other case, Coleman recognized before a justice of the peace, to appear at Allegany county court, since the adoption of the present constitution, by which circuit courts were substituted for the county courts. It was held, on appeal, that the recognizance to appear before a court not in existence, was void by reason of the impossibility of complying with its condition. The same doctrine must apply to cases of this kind, the principal obligor having undertaken to perform a condition, which, under the law, he could not perform.
It was said in argument,  [**15]  that the defendants are estopped, by the recital in the bond, from denying that there was an Anne Arundel county court. This point might, if tenable, have availed the State in the cases last referred to, but it was not relied upon; nor do we perceive how the doctrine of estoppels can apply. Whether a court exists or not, is something more than a mere question of fact, as to which parties may agree or be concluded by admissions. It must depend on the constitution or laws, and when the court can see that the supposed tribunal is not known to these, it must so decide, no matter what the parties may have admitted by estoppel or 

 [*331]  agreement. Besides, the bond does not recite that the party had appealed, but that he was about to appeal to Anne Arundel county court. Now, if he did not enter the appeal, and the declaration, with which alone we are now dealing, discloses nothing on that point, there was no obstacle to have hindered the State from prosecuting the judgment to execution; and, if he did enter the appeal, the right of the State was equally unaffected, because an appeal bond, on which no recovery can be had by the obligee, cannot operate to stay execution. The State might [**16]  have demanded execution of the judgment, non obstante this bond.  Johnson vs. Goldsborough, 1 H. & J. 492.
The case was provided for by the constitution, but the justice, it seems, made a mistake. The 8th section of article 4, gives to the circuit courts the power, authority and jurisdiction, formerly held and exercised by the county courts. The justice should have taken bond to prosecute the appeal to the circuit court. It may be a hardship on the State or the informer, that such a mistake occurred, but we cannot supply a remedy. As we have said, the State was not bound by the appeal bond as a stay of execution, but might have proceeded on the judgment. These appellants were differently situated, being sureties in an appeal bond, under which their principal was entitled to no benefit whatever, and from which it was impossible to have discharged them by compliance with its condition. The State was not concluded by the bond, and to hold them liable would be to enforce a contract where there was no mutuality. The hardship on them would be apparent, even if the State has allowed herself to be delayed by the appeal.
With these views of the cause of action, as shown by the [**17]  declaration, we need go no further into the record, as the judgment must be reversed without a procedendo. 4 G. & J. 395.
Judgment reversed. 

19 of 47 DOCUMENTS 

MARGARET HAMILTON vs. JOHN WHITRIDGE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 128; 1857 Md. LEXIS 29 

DECEMBER, 1857, Decided 

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

In this case an injunction was granted upon a bill filed by the appellees, on the 29th of April 1856, restraining the appellant from occupying and using a house which she had purchased, on Frederick street, in the city of Baltimore, as a house of ill-fame. The allegations of the bill and answer are fully stated in the opinion of the court below. After answer filed a motion to dissolve the injunction was made by the defendant, and testimony, to support the allegations of the bill, was taken under the act of 1835, ch. 380. The purport of this testimony is sufficiently stated in the opinion of the court below and of this court. The defendant excepted to the testimony of some of the witnesses, in so far as they speak of what they had heard as to her keeping a bawdy-house, and to their testimony as to the common rumor or reputation that she keeps a bawdy-house. She also objected to the transcripts of the records of indictments against her, so far as said indictments and confessions or pleas of guilty are offered to prove that she kept a bawdy-house at the time this bill was filed, or to prove that she intended to occupy the house mentioned [**2]  in the bill as a public bawdy-house. Upon the hearing of the motion to dissolve, upon bill, answer and the above mentioned testimony, the court, (KREBS, J.,) delivered the following opinion:

"The bill filed in this case, by the complainants above named, and others, alleges, that the defendant has been long notorious, in the city of Baltimore, as the keeper of a house of ill-fame, and now keeps such a house in another part of the city; that she has recently purchased the premises designated as No. 51, Frederick street, in said city, and is now repairing and improving the said premises with the design of occupying them for purposes of prostitution, and as a common bawdy-house, to their great detriment and injury. They allege that they reside in the immediate neighborhood of said premises, and own property adjacent thereto; one of them, Rezin Haslup, residing in the house No. 49, immediately adjoining the said premises. That in addition to the wrong and injury they would suffer with their fellow citizens generally, by the creation of the nuisance, in case those premises should be occupied by her for the unlawful and immoral purposes mentioned, they will be especially wronged and [**3]  injured, inasmuch as they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, by its close proximity to the premises which, they allege, she is about occupying for the said purposes. They also aver, that they have no adequate remedy at law to prevent the evil complained of, and are remediless save in a court of equity, and pray for an injunction to restrain her from moving into and occupying the said premises, &c., which was ordered and issued.

"The defendant, in her answer to this bill, admits that she has purchased the house No. 51, Frederick street, that she has had it repaired and intends occupying it; that the complainant, Haslup, owns and occupies the house next adjoining. She denies that either Whitridge, Horton or McCandless reside on Frederick street; the former, she alleges, lives on Gay street, in a house which is not in sight of her's; that Horton's dwelling is in another part of the city, though his shop, in which he carries on his business, is in Frederick street, some six or eight doors from hers, and that McCandless carries on his trade in a shop in that street, at a still greater [**4]  distance from her house. She declines answering any of the allegations in the bill, in regard to the character for which she has been notorious in the city, and the manner in which she is now employed, and the purposes for which she is now repairing and improving, and intends occupying the said house, and insists, that she is not bound, by the law of the land, to answer them, or any of them.

"Her answer contains no denial of the allegations in the bill, in regard to the detriment and injury that will ensue to the complainants, or the special wrong and injury they will sustain by reason of the occupation of the said premises, for the purpose alleged, by depriving them severally of the comfortable enjoyment of the property, and that it will, in consequence of such use and occupation, be greatly depreciated and lessened in value, nor of the allegation that they have no adequate remedy at law.

"After the defendant filed her answer the complainants examined several witnesses in reference to the allegations in their bill, under a commission ordered in pursuance of the act of 1835, ch. 380, and their testimony is amongst the proceedings. The motion to dissolve the injunction issued [**5]  has been heard upon bill, answer, and the said testimony. Upon this hearing the allegations in the bill, not denied by the answer, must be taken to be true, at least, such as she was bound to answer. Upon an examination of the averments in the bill, in connection with the denials in the answer, I find that these facts may be assumed, some of them being admitted, some conclusively proved, and some sufficiently proved to be stated as facts in the consideration of this motion, viz., that the defendant has purchased the house No. 51, Frederick street, and intends to occupy it; that the complainant, Haslup, owns the adjoining house, and lives in it with his wife and three daughters, aged, respectively, fourteen, sixteen and eighteen years; that the complainant, Whitridge, lives on Gay street, on a lot extending back to Frederick street, opposite to the defendant's house, and that her house is in view of the two back windows of the second and third stories of his house; and that he also owns a dwelling house, occupied by a tenant, on Frederick street, directly opposite to the defendant's; that the other complainants own houses near, and carry on their trades, respectively, in these houses;  [**6]  that the defendant keeps a house of ill-fame, and intends moving into this house and using it for the purposes of prostitution; (this, I think, sufficiently appears from the fact shown by the records of the criminal court of Baltimore city, that she was convicted for keeping a bawdy-house on the 22nd of June 1855, and again on the 12th day of November 1855, on both occasions upon her own confession of guilt, taken in connection with the statements recently made by her, in her conversation with the witness, Michael E. Myers, as detailed by him;) that if she occupies this house for the purposes charged, the complainants will be specially wronged and injured; that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value; (the allegations in the bill, in regard to these mischiefs and injuries, not having been denied by the defendant in her answer, the complainants are entitled to assume them as facts;) and that they have no adequate remedy at law.

"The keeping of a bawdy-house is confessedly a public nuisance. The law abhors the offence to good morals which such an occupation encourages, and spurns [**7]  every contract whose consideration looks to the indulgence or accommodation of the vice involved in it. It punishes, by indictment, the landlord who rents his premises for such a purpose, and the keepers of such houses are constantly arraigned in the criminal courts of the State and condemned for the act. This defendant, then, intending to create or establish a public nuisance indictable as a criminal offence, at the place designated in the bill of the complainant, has this court the power, by injunction, to restrain her from so doing? Story in the 2nd Vol. of his Eq. Jurisprudence sec. 924, says: 'Courts of equity interfere to restrain and prevent such nuisances which are threatened or in progress, not only upon the information of the attorney general, but also upon the application of private parties directly affected by the nuisance;' and in sec. 924, (a,) or 'when private individuals suffer an injury quite distinct from that of the public in general, in consequence of a public nuisance, they will be entitled to an injunction and relief in equity.' The law, as thus stated, is firmly settled by numerous English and American authorities. 9 Eng. Law & Eq. Rep., 104, Soltau vs. De Held.  [**8]  8 Sim., 193, Spencer vs. London & Bir. Railway Co. Ibid., 272, Sampson vs. Smith. 12 Pet., 91, City of Georgetown vs. Alexandria Canal Co. 20 Conn., 120, Frink vs. Lawrence. 14 Do., 577, Bigelow vs. Hartford Bridge Co. 4 H. & McH., 540. Harrison vs. Sterrett. 8 G. & J. 479, Delaware & Md. Rail Road Co. vs. Stump.

"Such being the rights of individuals to the interposition of a court of equity, to restrain a public nuisance from which they suffer a special injury, the next inquiry is, do these complainants sustain such damage and injury, from this nuisance, as entitles them to the relief they pray for? Their uncontradicted allegations, in regard to damage, which are to be taken as true to their full extent, show that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, to their great detriment and injury. In the judgment of this court this is such a degree of damage and injury as meets the requirements of the decisions, in cases which the courts have granted such relief as these complainants ask for. It is insisted, however, that they have not alleged and proved any such damage or injury [**9]  to be sustained by them, as meets the demand of the rule established in those cases; that such damage must be irreparable, and that depreciation in the value of their property is insufficient. I have carefully examined the cases in which courts of equity have restrained public nuisances, upon the application of individuals sustaining special damage therefrom, and find that they furnish no authority for the position, that they are not entitled to relief, unless the damage to them, from public nuisances, be irreparable. In some of these cases the attention of the court has been specially drawn to the distinction between irreparable damage and damage of an inferior degree, and in view of this suggestion they have not deemed it proper to countenance or establish the rule contended for in behalf of the defendant. In the case of Bigelow vs. Hartford Bridge Co., 14 Conn., 565, which was an application for an injunction against the Bridge Company to restrain certain acts it was about committing, the point was made, 'that an injunction will not be granted against the company, unless the injury is irreparable; a mere diminution of the value of property by a nuisance, without irreparable mischief,  [**10]  will not furnish any foundation for the relief sought,' (page 577.) The judge in deciding upon the application says, that the bill cannot be sustained merely on the ground that the contemplated acts of the Bridge Company will constitute a public nuisance, nor 'unless it shows that the plaintiff will sustain a special or peculiar damage from it, an injury distinct from that done to the public at large,' (page 578.) And upon the question, whether the plaintiff has shown that there is such a particular and special injury, which he has reason to apprehend from the acts contemplated, that he was entitled to an injunction? the judge by no means adopts the rule of irreparable damage, but says it is necessary, in order to lay the foundation for this remedy, that the injury shall 'be substantial and not merely a technical or inconsequential injury; there must be such a violation of the plaintiff's rights as will be attended with actual and serious damage,' (page 580.) The injunction in that case was not granted, for the reason, as the court say, that the decay and depreciation of the property, and the inconvenience which will ensue to the plaintiff are found to be 'very small, and not such [**11]  as will lessen materially the intrinsic value of the plaintiff's property,' (page 581.) In the case of Frink vs. Lawrence, 20 Conn., 118, there was an application for an injunction to restrain a public nuisance from which special injury would result to the complainant. He did not allege irreparable damage in his bill, but it appeared that the act complained of would 'seriously impair the value of his property,' (page 119.) The court say: 'We have had occasion, in several recent cases, to consider the question, whether a private individual can sustain a bill in equity, for an injunction against a public nuisance. And we held, that if the party complaining will sustain a special or peculiar damage, distinct from that done to the public at large, the relief would be granted. Indeed such now seems to be the well established rule in equity, especially where the object is to prevent some irreparable injury.' But the court, so far from restricting the relief to such cases, advised the Superior Court to grant the prayer of the bill and decree a perpetual injunction, and this is a case in which there was no allegation or proof of irreparable damage. So in the case of The City of Georgetown [**12]  vs. The Alexandria Canal Co., 12 Pet., 91, the Supreme Court of the United States, after assuming the law to be settled as to the rights of private individuals to the remedy, by way of injunction, against public nuisances when they aver and prove special injury, say, 'the complainants then must, to maintain their position in a court of equity, for relief against a public nuisance, have averred and proved that they were the owners of property liable to be affected by the nuisance, and that in point of fact were so affected, so as that they thereby had suffered a special damage,' (page 99.) It is perfectly manifest from this, and from other passages in the opinion of the court, that they did not deem it necessary for the complainant, in such case, to charge and prove irreparable damage to entitle him to an injunction. The cases of Spencer vs. The London & Birmingham Railway Co., 8 Simons, 193, and of Sampson vs. Smith, Ibid., 272, both leading cases on this subject, was each a case of a bill filed for an injunction to restrain a public nuisance, on the ground of special damage, to private individuals. Neither of the bills alleged irreparable damage. The defendants demurred in each case [**13]  on the ground that the nuisance was a public one, and, therefore, the relief prayed ought to have been sought by information and not by bill, but the demurrer was overruled in both cases, the vice chancellor deciding, in substance, that where certain individuals suffer an injury from a public nuisance quite distinct from that done to the public at large, the court will entertain a bill by them to be relieved from the nuisance, but not at all regarding it indispensable that the injury should be irreparable. In Peck vs. Elder, 3 Sandford's Superior Court Rep., 126, the bill was filed by private individuals to restrain a public nuisance, alleging that it would materially injure and impair the value of their property. The chancellor said, 'it is sufficient that the nuisance is calculated directly to diminish its value by preventing its being occupied by the complainant, or by good tenants who are able and willing to pay the rent, or to destroy the value of the property as building lots,' (page 129, note,) and decided that the injunction must be continued until the hearing. This case was afterwards brought before the Superior Court, and it declared that a perpetual injunction must issue.  [**14]  The case of Corning & others vs.  Lowerre, 6 John's Ch. Rep., 439, was a bill to restrain a public nuisance, averring that it would cause 'great injury to the plaintiff,' as owners of certain lots. Chancellor Kent granted the injunction, saying, 'here was a special grievance to the plaintiffs, affecting the enjoyment of their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.'

"The above authorities demonstrate conclusively that the position assumed by the defendant, in reference to the degree of damage to be alleged and proved, to entitle the complainant to relief, cannot be maintained, and they also show clearly what the courts have regarded as the true rule upon this subject, viz: that the injury should be substantial, and attended with actual, serious damage, such as will materially lessen the intrinsic value of the property, or as the chancellor said, in Peck vs. Elder, such as is calculated directly to diminish its value by preventing its being occupied by the complainants, or by good tenants, who are willing and able to pay the rent; or, in the words of Chancellor Kent, affecting the enjoyment [**15]  of the property, and the value of it. In addition to the cases above referred to, there is one that recently came before the English court of chancery, and is reported in 9 Eng. Law & Eq. Rep., 104, in which the principal questions in this case were thoroughly argued at the bar, and so elaborately discussed and clearly settled by the learned vice-chancellor, as to show that in the English courts they would be no longer regarded as debatable. The object of the bill, in that case, was to restrain the ringing and tolling of bells in a chapel adjoining and contiguous to the dwelling of the complainant. It complained of this ringing as a great nuisance to the complainant and his neighbors, and the inhabitants of the parish, and it charged, that if the ringing of the bells, as they were then tolled and rang, was continued, it would considerably diminish the value of the plaintiff's house, and he should be obliged to leave it, and would have great difficulty in disposing of it, except at considerable pecuniary sacrifice. And the proof in the case showed that this would be the effect. There was a demurrer to the bill, on the ground of want of equity in the bill. The 1st ground of demurrer,  [**16]  as stated by the vice-chancellor, (page 111,) was 'that it was a public nuisance, and that it was not competent for the plaintiff to file a bill as for a private nuisance.' He then proceeds upon the assumption that it was a public nuisance, and reviews all the authorities upon the subject, in all of which, he says, 'it has been held, and acted on over and over again, that if an individual suffers a special and particular damage from an act, he may have the interference of a court on a bill, although the act complained of, be a public nuisance. In commenting upon the objection urged in that case, as in this, against the issuing of the injunction, he says: 'It is said that part of what is alleged by the plaintiff as the mischief arising to him, is the diminution of the value of his house. But although it is perfectly true the mere diminution of value does not per se constitute a nuisance, surely the extent of the nuisance, if it be a nuisance, may be materially shown by this, that so great is the annoyance that no respectable person, that is, no person who is able to live in such a house as this, would take it with such a nuisance, and the only person who could be expected to take it,  [**17]  would be one who would bear with the nuisance for the sake of the smaller rent which he paid. I say in that way diminution in value is of great moment,' (page 123.) 'Under these circumstances,' the vice-chancellor says, 'The question which I have to ask myself is this,' (and he put it in the language of Lord Justice Knight Bruce, in Walter vs. Selfe,) 'ought this inconvenience to be considered, in fact, as more than fanciful, or as one of mere delicacy and fastidiousness, or as an inconvenience materially interfering with the ordinary comfort, physically, of human existence? That, I think, enunciates distinctly the question which is to be tried on such an occasion as this, and I must add, in the very words in which Vice-chancellor Bruce goes on there: and I am of opinion that this point is against the defendant; that this is such an inconvenience, such an invasion of the domestic comfort, and invasion of a man's house, that he is entitled to come and ask this court to interfere. And upon that point, I would just refer to the language of Lord Eldon, in the case of The Attorney General vs. Nichol. He says, the foundation of this jurisdiction, that is, interfering by injunction, is that [**18]  head of mischief alluded to by Lord Hardwicke, that sort of material injury to the comfort of the existence of those who dwell in the neighboring house, requiring the application of a power to prevent, as well as remedy, an evil for which damages, more or less, would be given in an action at law. That (says the vice-chancellor) is the ground for interference by injunction, and that is the ground upon which I conceive that I ought to grant an injunction in this case, which he accordingly ordered; and that in a case in which he assumed the nuisance complained of to be a public nuisance, and in which the bill neither alleged nor the proof showed any irreparable damage, and in which, in rebutting the objection that the complainant relied merely on depreciation in the value of his property, he defines what the courts regard as depreciating and impairing the value of property by a nuisance, so as to entitle parties to relief by injunction, in such terms as to embrace and extend to the very kind of damage and injury alleged and shown in this case.

"This court cannot, without utterly disregarding the principles and positions established in these cases, refuse to the complainants the relief [**19]  they ask. They show a public nuisance of the most offensive character, about to be established, adjoining and contiguous to their respective houses. They show, further, all that courts in such cases require complainants to show, to entitle them to an injunction, that they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, if the defendant is permitted to set up this nuisance. Their right to the interposition of the court seems to follow, as a matter of course.

"It will be found, upon a careful examination, that the decisions referred to on behalf of the defendant, to sustain the position that these complainants cannot have relief, without showing irreparable damage, apply to cases of private nuisance, (2 Story's Eq., sec. 925,) and I do not think that the rule is settled, even in regard to nuisances of that description, unless it be taken in the terms used by Story, in his Equity Jurisprudence, 2 vol., sec. 926, in reference to private nuisances, where 'the injury is material, and operates daily to destroy or diminish the comfort and use of the neighboring house, and the remedy, by a multiplicity [**20]  of actions for the continuance of it, would furnish no substantial compensation.'

"But it is insisted by the solicitor for the defendant, that, conceding there are sufficient facts alleged and proved in this case, to entitle the complainants to the injunction prayed, if the nuisance of which they complain, were one offensive to the physical senses, yet inasmuch as this alleged nuisance is of such a character as to offend only the moral senses, the court will not interfere, and that for the reason that this court does not exercise the functions of a moral censor, or set itself up to protect the morals of the community; and that if it assumed the exercise of such powers, it would be compelled to go the length of interfering in behalf of persons of fastidious sensibilities, against neighbors whose habits or conduct might be grossly immoral and shocking to persons of virtuous sentiments, powers which it would be absurd to claim for the court. But it is not necessary for this court to vindicate its power to issue the injunction prayed for, by claiming to have the morals of the community under its care. It is sufficient for it to say that the pecuniary interests and property of the [**21]  citizen are committed to its charge, and that under certain circumstances it must interfere to protect them from damage. The ground on which it interferes in this case, is not that this defendant, or those around her, or even her establishment, is offensive to the moral senses of the complainants, but that the business and occupation which she intends to follow, has been condemned by the courts as an illegitimate employment, and a public nuisance, and is punished as such, and that by establishing this nuisance alongside of their property, they will be severally deprived of the comfortable enjoyment of it, and it will be greatly depreciated and lessened in value. Nor is the action of this court directed against the defendant as an immoral or vicious neighbor simply, but as an individual conducting an offensive business, regarded by the law as a nuisance, and interfering with the enjoyment, and impairing the value of their property. I can discover no authority, whatever, for the distinction relied upon in this case, between nuisances offensive to the physical senses, against which the court will grant relief, and such as are offensive to the moral senses only, against which they will [**22]  not interfere. So far from this being the case, I find that the standard elementary writers, in enunciating the classes of public nuisances in which the courts interfere, mention this very description of nuisance by name. 2 Wart. Eden on Injunctions, 264, note 3. Willard's Eq. Jurisprudence, 390.

"But it is insisted, on behalf of the defendant, that if this last position must be rejected, there is still another which would preclude the complainants from relief, which is, that they have all united in one bill, complaining of special and several injury to each, and praying relief accordingly, and that for this reason the bill must be dismissed. This objection is not new, but has been seriously urged in other cases of this description. In the case of Murray & Blount, vs. Hay, 1 Barb. Ch. Rep., 59, where several parties had united, complaining of special injury to each, from a public nuisance, it was relied upon by the defendant, but Chancellor Walworth, after reviewing all the previous decisions, both English and American, touching the point, and giving to them the fullest consideration, decides that the objection is not valid, and does not debar the complainants from such relief [**23]  as is prayed in this bill, framed as it is. The same point, the chancellor says, was previously decided by Chancellor Sandford, in the case of Reid and others, vs. Gifford, Hopkin's Ch. Rep., 416.

"For the foregoing reasons, I must continue the injunction heretofore granted in this case, until final hearing."

From the order so continuing the injunction, the defendant appealed.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Where a motion to dissolve is heard upon bill, answer and testimony, taken under the act of 1835, ch. 380, if the bill shows a case entitling the parties to the injunction, it will not be dissolved if the equity is not denied by the answer.

A court of equity has jurisdiction to prohibit, by injunction, a party from creating or erecting the public nuisance of a bawdy-house, upon a bill filed by private individuals, alleging that the close proximity of such a nuisance will deprive the complainants of the comfortable enjoyment of their property, and greatly depreciate and lessen its value.

The absence of precedents, though not to be overlooked entirely, does not, of itself, determine questions of jurisdiction; adjudged cases are consulted to ascertain their reason and spirit, which are the foundation of the law.

Courts are not to assume jurisdiction, but they may amplify remedies and apply rules and general principles for the advancement of substantial justice.

A party injured by a public nuisance may apply to a court of equity to prevent such nuisance, if its existence will cause a substantial prejudice to his property, or the reasonable enjoyment thereof.

The usual practice of raising the objection of multifariousness, as to parties, is by demurrer, but when raised at the hearing it is not always fatal, and will be allowed at the discretion of the court.

But where the court can see that the reason of the rule, upon which such objections are founded, does not apply, and the objection is not made by demurrer, the court ought not to interfere sua sponte.

Where the answer to a bill filed by several parties, to prevent the erection of a public nuisance, takes no defence upon the ground of multifariousness, and under such bill the real point in controversy can be determined, as well as if there were as many suits as there are plaintiffs, an objection of multifariousness, taken at the hearing, cannot be sustained.  

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

The court below was in error, because it passed this order in the absence of any testimony in the case to show that the defendant did intend to use the house as a house of ill-fame. The court, in its opinion, admits that such evidence was necessary, but assumes that it was supplied by the failure of the defendant to answer the allegations of the bill, which charged that she was keeping, at the time of the purchase of the house, a house of ill-fame, and especially by her failure to deny that she intended occupying the house in Frederick street for that purpose. The defendant was not bound to criminate herself by her answer to the allegation of her existing occupation, (2 H. & J. 487, Singery vs. Attorney General;  [**24]  3 Bland, 125, Salmon vs. Clagett,) and her refusal or neglect to answer the allegation that she intended to occupy the house purchased as a house of ill-fame, cannot be construed into an admission of the fact. 2 H. & J. 301, Hopkins vs. Stump. 1 G. & J. 503, Warfield vs. Gambrill. The true course of the complainants, if they were dissatisfied with this answer, was to have excepted to it, and if the court had ruled it insufficient, it would have been no answer, and the defendant would have been in contempt, which could have been purged only by a further answer. The court, therefore, plainly erred in its order, for it is founded upon a presumption of testimony where there does not exist any testimony in the case.

The court erred in admitting that testimony which has been excepted to. Evidence of reputation must be founded upon the opinion of the public, or, at least, of the neighborhood, and no less basis can suffice. And it was still more inadmissible to permit evidence of a conviction for a past offence to stand as proof of a present occupation. The presumption of the law being, as far as any presumption can be raised, that the sentence of the law had deterred the offender.  [**25]  

Assuming that the court was right in its assumption that the house was to be used as a house of ill-fame, it does not seem that there was any right to issue the injunction at the suit of private parties. There did exist a full remedy at law in the name of the commonwealth, for the evil, not only for its punishment, but for its abatement, for this may be a part of the judgment and remedy on such judgment. 3 Wart. Arch., 204, 238. And this is not of that species of public nuisance, in which a resort to private remedy is contemplated, because it is not one from which any physical damage results, or which interferes with the physical enjoyment of the comfort of the tenements of the complainants. Every case cited by the complainants, or referred to by the court below, in its opinion, hath this ingredient. And the absence of any case in the books, in which this remedy has been sought to be enforced in such a case, is a strong presumptive argument against the exercise of the power. If it is a good exercise of it, an eaves-dropper and a common scold can be enjoined from moving into any house they have purchased, for these are common nuisances, (4 Bl. Com., 168,) and the disposition is [**26]  more inseparable from the identity of the person than any occupation can be. The true rules seem to be: 1st. That equity, in case of a public nuisance, will enjoin where the nuisance works a direct physical injury to the property, or to the comfort of the occupant. 2nd. Where the nuisance consists in the violation of public morality, as recognized by law, the remedy to the person aggrieved by the proximity of the evil to himself, is found in the abatement of the nuisance which the court may order in its judgment, upon the indictment for such nuisance.

The law in Maryland cannot be strained beyond these principles, and, as yet declared, it does not even reach thus far. In this State the remedy, so far as a private right is concerned, only arises where a special injury has been inflicted. 8 G. & J. 510, Delaware & Md. Rail Road Co. vs. Stump. And this injury must be irreparable. 4 Gill 38, Hamilton vs. Ely. 8 Gill 433, Richardson vs. Mayor & C. C. of Balto. 1 Md. 543, White vs. Flannigain. 3 Md. 489, Ches. & Ohio Canal Co. vs. Young. 7 Md. 416, Shipley vs. Ritter. These cases follow the case of Attorney General vs. Nichol., 16 Ves., 342, and Wynstanley vs.  [**27]  Lee, 2 Swans., 336. See, also, as to the principle that a court of equity is not custos morum, 2 Story's Eq., secs. 936, 945.

No counsel appeared for the appellees.  

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

OPINIONBY:
TUCK 

OPINION:

 [*143]  TUCK, J., delivered the opinion of this court.
The injunction in this case was granted upon a bill stating that the appellees are owners of property in the city of Baltimore, in the immediate vicinity of a house which the appellant had purchased, and to which she intended to remove, for the purpose of keeping a house of ill-fame, in which business she had been for a long time, and was then engaged. The bill charges, also, that in addition to the wrong and injury inflicted upon them, in common with other citizens of that city, by the occupation of the premises for the unlawful and immoral purpose complained of, "the complainants will be especially wronged and injured, inasmuch as they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, by the close proximity of their said property to the premises in which it is charged that the defendant [**28]  is about to open a bawdy-house." The defendant, by her answer, admits the averments of residence and ownership of property by the complainants, setting forth particularly their relative situation to the house she had purchased; but declines to answer the averments that she had previously kept a bawdy-house, and intended to keep one at the house mentioned in the bill.
The case comes before us on appeal by the defendant from an order continuing the injunction, passed on motion to dissolve, and a hearing on bill, answer and affidavits, under the act of 1835, ch. 380. In this stage of the cause, if the bill shows a case entitling the parties to the injunction, it will not be dissolved, if the equity is not denied by the answer.  Hardy 

 [*144]  vs. Summers, 10 G. & J. 316. Hutchins vs. Hope, 12 G. & J. 244. This rule of practice is an answer to the objection taken on the part of the appellant, that the judge below had passed the order appealed from in the absence of evidence that she was, at the time of filing the bill, the keeper of a bawdy-house, and intended to pursue that business at her new residence. But we think that the case authorizes [**29]  the conclusion, as a matter of fact, that the appellant purchased and was fitting up this house for the offensive purpose stated in the bill. As late as November 1855, she had been convicted, on her own confession, of having been so employed, and two previous convictions had been obtained, in the same manner, in the years 1854 and 1855. Between the last of these convictions and the month of April 1856, when the bill was filed, not one circumstance is shown from which we can infer that she had changed her course of life. On the contrary, the inference is most strongly rebutted by her conversation with one of the witnesses, when she was having the house repaired. This view of the case derives strength from her refusal to answer the allegations of the bill on this point. Touching, as it did, her reputation, she would doubtless have denied the fact alleged, if it had been false. By her silence, or refusal to answer, we think she subjects herself to the remarks of the late Chancellor Bland, in 3 Bland 132, "that a defendant who manifestly omits to answer, or answers evasively any substantial part of the bill, who evidently and purposely holds back something, cannot complain [**30]  if he should find himself regarded with suspicion and distrust, and be refused that to which he may, in truth, be entitled, and, under other appearances, might have obtained." So, in Bentley vs. Cowman, 6 G. & J. 152, it is said, "Pleadings in equity are founded in the purest principles of ethics, and marked by frankness and fair dealing." It is no answer to say that the defendant was not obliged to criminate herself, for, conceding that this would have relieved her from answering the allegation that she was then carrying on that business, it is very clear that she would not have subjected herself to a prosecution, by denying that she had purchased this house with a view to continue 

 [*145]  it there. We are constrained, therefore, to consider the appellant as a person about to open the premises as a house of ill-fame, and the prominent question for decision is, whether the jurisdiction of courts of equity embraces the prohibition of such public nuisances, where the complaint is, that they will, by reason of their close proximity, deprive other persons of the comfortable enjoyment of their property, and greatly depreciate and lessen its value.
As was observed [**31]  by the appellant's counsel, no decision has been found in which the power was exercised in such cases as the present. Nor is there any in which the writ of injunction has been applied for and denied. But the absence of precedents, though not to be overlooked entirely, does not, of itself, determine questions of jurisdiction. We consult adjudged cases to ascertain their reason and spirit. These are the foundation of the law.  3 Bland 133. Fisher vs. Prince, 3 Burr. 1364. Rust vs. Cooper, Cowp., 632. Courts are not to assume jurisdiction, but they may amplify remedies, and apply rules and general principles for the advancement of substantial justice. Broom's Maxims, 36. 50 Law Lib. 50.  Russell vs. Smyth, 9 Mees. & Wels. 818, per Ld. Abinger. If this were not so, and courts were confined to particular precedents, there would be no power to grant relief in new cases constantly occurring. And, hence, when they do arise, and rights can be asserted, or wrongs prevented or redressed, consistently with established principles, it would be a great failure of justice to deny relief, merely because no decision could be found [**32]  in which the jurisdiction had been invoked and exercised. The point on this appeal, then, is not whether an injunction has ever issued to prevent the establishment of a public nuisance of this kind, but whether the doctrines of equity, applicable to nuisances, should be applied to the present case.
Although at law, the remedy in respect to public nuisances is by indictment, and in respect to private ones, by action at the instance of the person injured, yet, in the common law tribunals, redress may be had for damage resulting from public as well as private nuisances. These remedies can only abate 

 [*146]  or afford compensation for an existing nuisance, and are ineffectual to restrain or prevent such as are threatened or in progress. Hence there is a jurisdiction in equity to enjoin, whenever the nature of the injury is such that it cannot be adequately compensated by damages, or from its continuance or permanent mischief, will occasion a constantly recurring grievance. And as a party injured by a public nuisance may have his action at law for damages thereby sustained, so he may apply for an injunction to prevent such nuisance, if its existence will cause a substantial prejudice [**33]  to his property, or the reasonable enjoyment thereof. Drewry on Injunctions, 240. 36 Law Lib. 165. Adams' Equity, 210. 68 Law Lib. 185. 2 Story's Eq., sec. 920 to 926. Jeremy's Equity, 309, 310. This author says: "The foundation of this court's jurisdiction on the subject of nuisance, is the probability of irreparable mischief; that sort of material injury by one to the comfort of another, which requires the application of a power to prevent, as well as to remedy, the evil."
We need not review here the cases on which these writers rely. They generally sustain the doctrine as laid down by them. Formerly the jurisdiction was more restricted than at present; but, for many years, both in England and in this country, this process has been more extensively employed, as the exigencies of society created a necessity for its use, according to recognized doctrines of equity. The English decisions were examined by the vice-chancellor, in Soltau vs. De Held, 9 Eng. Law & Eq. 104, upon the authority of which, he considered himself warranted in applying the remedy in restraint of ringing church bells, "so as to occasion any nuisance, disturbance, or [**34]  annoyance to the plaintiff, and his family residing in his house," upon the ground that a private person may bring his bill in equity, where he apprehends injury or disturbance in the enjoyment of his property from a public nuisance.
In this country, too, there are decisions full to the point. We mention, particularly, Corning vs. Lowerre, 6 Johns. Ch. Rep. 439, recognized in 12 Peters 91, where Chancellor Kent allowed the writ, "inasmuch as there was a special 

 [*147]  grievance to the plaintiffs, affecting the enjoyment of their property, and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs." The Supreme Court, in 12 Peters 91, said, that "a court of equity, pursuing the analogy of the law, that a party may maintain a private action for special damage, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance, at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy." This principle [**35]  appears to have been acted upon in this State; for in the case of Harrison vs. Sterett, 4 H. & McH. 540, a claim for damage resulting from a public nuisance, was sustained at law; and in The Del. & Md. R. R. Co. vs. Stump, 8 G. & J. 479, the jurisdiction of courts of equity in such cases was recognized, but not enforced, because the bill did not state a case of private grievance.
But the appellant's counsel suggested that a distinction should be taken between the cases relied on in support of this power and the present, because here the object is to prevent what is offensive to the moral senses. We need not inquire how far this jurisdiction can be defended on grounds of morality, and to preserve the decencies of life from gross violation. The case does not require this. But it would be strange, indeed, if when the court's powers are invoked for the protection and enjoyment of property, and may be rightfully exercised for that purpose, its arm should be paralyzed by the mere circumstance that, in the exercise of this jurisdiction, it might incidentally be performing the functions of a moral censor, by suppressing a shocking vice denounced by [**36]  the law, and amenable to its penalties from the earliest times. And if, as the authorities show, the court may interfere where the physical senses are offended, the comfort of life destroyed, or health impaired, these alone being the basis of the jurisdiction, the present complainants, presenting as they do a case otherwise entitling them to relief, should not be disappointed merely because the effect of the process will be to protect their families 

 [*148]  from the moral taint of such an establishment as the appellant proposes to open in their immediate vicinity.
The objection of multifariousness as to parties, was made at the hearing, and not by demurrer, which is the usual practice. When raised at the hearing, it is not always fatal, but will be allowed at the discretion of the court. Story's Eq. Pl., secs. 271, 284, a. 530, 540, 541. One ground for such objections is, that the defendant might be required to unite in one answer defences not applicable to all the complainants, thereby presenting various issues in the same cause, and involving the defendant in unnecessary litigation and expense. Where, however, the court can perceive that the reason of the rule does not [**37]  apply, and the objection is not made by demurrer, it ought not to interfere sua sponte. Here the objection has been waived by the answer, which takes defence as to all the complainants, and under it, the real point in controversy can be determined as well as if there were as many suits as there are plaintiffs. Therefore, without deciding whether the bill be demurrable or not, we are of opinion that the point was properly ruled against the appellant.
Order affirmed, and cause remanded. 

20 of 47 DOCUMENTS 

JESSE ROBERTSON vs. THE AMERICAN HOMESTEAD ASSOCIATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 397; 1857 Md. LEXIS 4 

JUNE, 1857, Decided 

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

On the 1st of May 1853, the appellant executed to "The American Homestead Association of the city of Baltimore," a mortgage of a leasehold interest in a lot of ground in the city of Baltimore. This deed states that: "Whereas, the said Jesse Robertson is a member of the said association, duly incorporated, and it is a condition precedent to the money below named being loaned to him, that these presents should be executed, therefore he executes the same: Now this indenture witnesseth, that the said Jesse Robertson, in consideration of the premises, and of $ 460, current money, to him in hand paid by the said corporate body, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant, bargain and sell, assign, transfer and make over, unto" the said body corporate, and its "assigns," the property above mentioned. "Provided, however, that if the said Jesse Robertson, his heirs, executors, administrators or assigns, shall truly pay, and perform the payments and obligations hereinafter, and as hereinafter mentioned, to be paid and performed by him, then these presents shall be void." The mortgagor [**2]  then covenants, "truly to pay to the said body corporate, or the assigns thereof, interest at the rate of six per cent. per annum, payable monthly, from the day of the date hereof, upon the aforesaid sum of $ 460; also to pay the further sum of one dollar, weekly, payable every Friday, until the time arrives when each unredeemed share of the said body corporate's stock, shall be worth, in cash, above all losses and liabilities, the sum of $ 200, and the said body corporate shall have sufficient funds on hand, to pay to the holders of every unredeemed share of its stock, the said sum of $ 200, clear of all losses and liabilities; also, that he shall truly pay all ground-rent, taxes, and public dues, for which the herein mortgaged property is and may be liable, when the same shall be due; also to pay all fines imposed by the articles of association, of the said body corporate, for neglect to make the said payments, or any of them, as and when they are payable; also to keep the said mortgaged property and premises fully insured from loss by fire, for the use and benefit of the said body corporate, and the assigns thereof, during the continuance of these presents. All and singular these [**3]  payments and obligations shall continue in force, until each unredeemed share of the aforesaid stock shall be worth, as aforesaid, $ 200."

The mortgage then gives a power of sale, under the act of 1836, ch. 249, upon three months' default of the mortgagor, to pay and perform the above mentioned payments or obligations, or any of them, and contains the mortgagor's assent to a decree, under the act of 1833, ch. 181.

On the 25th of August 1855, the association filed their petition, in the court below, alleging that Robertson has neglected for more than three months past, to make the weekly payments of money and of interest, mentioned in the above mortgage to be paid by him, and that default has thus taken place, and praying that a decree may be passed for the sale of the mortgaged premises. With this petition was filed the mortgage, and the following statement of claim, with the affidavit annexed, of the treasurer of the association, "that the aforegoing account is a just and true account of the mortgage debt, due and unpaid by the said Jesse Robertson to the said association."

________________________________________________________________________________

  "Mr. Jesse Robertson,	
      To The American Homestead Association,		DR.	
1853, May  21st.	Cash for redemption of 4 shares, a	$ 115	$ 460 00	
1854, Oct. 13th.	Ground-rent & cost of distraint paid,	   16 36	
  "    "     "	Cash for insurance,	    2 00	
1855, Aug. 11th.	Int. on 18.36 for 9 mos. 29 days,	      90	19 26	
  "    "     "	15 months' fines, non-payment of	
	  interest, a	      40	6 00	
  "    "     "	Int. unpaid 15 2/3 months, on	  460	36 03	
  "    "     "	59 weeks' fines, non-payment of	
	  dues, a	      20 cts.	11 80	
			$ 533 09	
  Cr. By cash paid weekly dues,		$ 167 00	
	        Balance due,		$ 366 09	
________________________________________________________________________________

 [**4]  

The court, (KREBS, J.,) on the same day, (25th of August 1855,) passed a decree: "That unless the said mortgagor shall, on or before the 27th day of August 1855, pay to the said mortgagee, or bring into court to be paid to it, the sum of $ 366.09, together with the costs of this proceeding, then the mortgaged property, in the said proceedings mentioned, shall be sold," and appointing a trustee to make the sale. From this decree the mortgagor appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

An appeal lies from a decree passed under the act of 1833, ch. 181, and its supplements, and on such appeal, the appellate court will examine the terms and conditions of the mortgage, and determine whether the decree is in conformity therewith.

In proceedings under this act, the court has no power to pass any decree, not in conformity with the conditions of the mortgage, and embraced in the terms of assent to the decree contained in the mortgage itself.

The court is not authorised to determine judicially, by its decree, the amount due on the mortgage, and a decree for a sale "unless a certain sum is paid," when, upon the face of the mortgage, no such sum could be due at the time of the decree, and there was no covenant or engagement in the mortgage to pay any such sum, is erroneous.

The statement of his mortgage-claim on oath, required to be filed by the mortgagee before the sale, may be filed either before or after the decree, but such statement is not conclusive, and the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi.

Mortgages to building associations, authorised and made valid by the act of 1852, ch. 148, are not within the provisions of the act of 1825, ch. 50, or if they are, the act of 1825 is repealed, pro tanto, by that of 1852, and the 9th section of this latter act, by fair implication, brings such mortgages within the provisions of the act of 1833, ch. 181, and its supplements.

In ascertaining the present value, in gross, of the sums secured by such a mortgage, the court cannot look beyond the mortgage itself. A covenant to pay "all fines imposed by the articles of association," does not make such articles a part of the mortgage, or authorise the court to consider them in construing the mortgage, or in ascertaining the amount to which the mortgagee is entitled, in presenti, out of the proceeds of sale.

In the case of such a mortgage, the mortgagor is not entitled to redeem, on payment of the money advanced to him by the association, with interest.

The rule for ascertaining the amount which the mortgagee is entitled to receive, in presenti, in satisfaction of such a mortgage, is to ascertain by proof the probable duration of the society, then to estimate the aggregate amount of the monthly instalments, payable during that time, and from that sum rebate a just amount for interest, and add thereto the arrearages due, after allowing for payments made to the society.

Mortgages to building associations, such as are contemplated and provided for by the act of 1852, ch. 148, if executed in conformity to the provisions of that act, are free from all objection on the ground of usury. 

COUNSEL:
Richard R. Battee and Levin Gale for the appellant, argued:

1st. That the act of 1833, so far as it gives a summary power of foreclosure by sale, without notice to the mortgagor, applies only to mortgages given to secure the payment of certain liquidated amounts of money, at a definite period. This mortgage, if it be a mortgage and not a deed of trust, is not given to secure such definite sum, but to enforce the performance of certain covenants, some of which are purely collateral, and those which covenant for the payment of money, being for the payment of such small sums, (the largest being $ 1,) that they are not within the chancery jurisdiction. Act of 1715, ch. 41, sec. 7. De nimimis [**5]  non curat lex.

2nd. That even if cases of this kind are embraced within the act, yet this decree does not follow the mode prescribed. The act authorises a decree for the sale of the mortgaged premises, at any one of the periods limited for a default of the mortgagor. This decree instead of pursuing this form, first adopts the account filed by the association, decides it to be the correct statement of the amount due, and then decrees that unless that sum be brought into court or paid within two days, the property shall be sold. This is an entire departure from the mode prescribed by the act, even if the amount named in the decree were apparently correct. The act does not authorise the court to determine, by the decree, the amount due upon the mortgage. The court cannot fix beforehand the amount to be paid. But the slightest examination of the alleged mortgage will show, that it does not stipulate for payment of any such sum, or any sum that by any calculation can be made to amount to that sum. This defect is properly examinable upon this appeal, and the decree must be reversed for this reason if no other. 7 Gill 302, Williams vs. Williams. 5 Md. Rep., 99, Hays vs. Dorsey.

3rd.  [**6]  That this mortgage is void under the act of 1825, ch. 50, which requires that all mortgages, to be valid, must specify the principal sum or sums intended to be secured. The mortgage in Cole vs. Albers & Runge, 1 Gill, 424, was fixed as to time and amount: it could not exceed a certain sum. This is unlimited both as to time and amount. There is nothing upon its face to show what an unredeemed share is, or how many such shares there are, and yet the mortgagor is to go on paying until these shares shall be worth $ 200 each. There is nothing, therefore, upon the face of the paper, by which the extent of its obligations can be determined. It has been likened to the case of an annuity, but in such case there is but one event uncertain, and that is limited, viz., the life of the party; here the mortgagor is surety for every transaction of the association, and for every one of its officers; it may last millions of years. What bill of discovery could ever ascertain the extent of such an obligation? How could a creditor ascertain it? It is impossible to say, from the face of this deed, whether the weekly payments are to be continued for ten weeks or ten thousand. It not only stipulates that [**7]  the mortgagor shall pay $ 1 weekly, until each unredeemed share shall be worth $ 200, but, to make assurance doubly sure, adds, over and above all losses and liabilities, and until the association shall have funds sufficient to pay each holder of such share $ 200 in cash. Thus it makes the mortgagor surety for every debtor of the association, and liable for any default of any of its officers. The corporation may go on prosperously, until the near approach of the time of its anticipated fruition. Funds may have been realised, sufficient to pay each fortunate holder of an unredeemed share $ 199. Another week, and the requisite amount to complete the $ 200, will be in the treasury, when lo! the treasurer absconds with all the assets of the company. The slow effort of gradual accumulation must be again resumed, and years are again occupied in the process, and even then when its affairs again become prosperous, there can be no assurance that it may not be again reduced to insolvency by unfortunate speculation, unforeseen accident, or the fraudulent conduct of its officers. Yet, during all this time, no matter how long, according to the terms of this deed the mortgagor is not only obliged [**8]  to go on paying his weekly dues, but is also compelled to pay interest on the whole sum originally obtained by him from the association, although he may have paid, in the mean time, more than that amount twice over. And the only benefit he is to derive from all this is, when the association does finally accomplish its purpose, of accumulating for its unredeemed shareholders $ 200 for each share, his property is then to be relieved from the burthen, provided, in the meantime, it has not been sacrificed by a force sale, without notice to him, for perhaps the non-payment of a dollar. Such an instrument must be void under the act of 1825. But it is supposed this defect is remedied by the act of 1852, ch. 148. But it is respectfully submitted, that that act does not authorise such a deed as this. It says, any member of such associations may execute a mortgage to secure the payment of the unpaid instalments, "on the share or shares" purchased by him. What is there on the face of this deed to show that Robertson was paying any thing on his shares, or that he held any shares in the concern? To come within the provisions of this law, the mortgage should show upon its face the number of shares [**9]  the mortgagor held, and the time within which the association was to close, or at least the facts should be stated which would indicate the time.

4th. That the contract contained in this mortgage is usurious, and therefore void. The intention of the parties, and the words used in the instrument, must determine whether it be usurious or not. If the court can see that it is a decree to cover up usury, they will unravel the transaction and declare the instrument void. 3 H. & J., 109, Tyson vs. Rickard. 6 G. & J., 18, Trumbo vs. Blizzard. 3 Do., 123, Stockett vs. Ellicott. 2 Parson's on Cont., 385. Now this deed itself recites, that the $ 460 was loaned to the mortgagor, and requires him to pay interest on this loan. The mortgage is foreclosed as a loan, and the treasurer of the association, in his affidavit to the statement of claim filed with the mortgage, swears to it as a loan. It demands interest to be paid monthly over and above weekly dues and fines, and the account filed with the mortgage, shows on its face that the transaction is grossly usurious. The only question then is, is such a contract void? Chief Justice Taney in his opinion in the case of Dill vs. Ellicott, says [**10]  such a contract is void under the 49th sec. of the 3rd art. of our constitution. All the English cases say, that a contract expressly prohibited by law is void. See 10 Bing., 107, DeBegnis vs. Armistead. 23 Amer. Jurist., No. 45, April 1840, page 12. 2 Pet., 527, Bank of U. S., vs. Owens. Smith on Cont., 203, 225. 1 Parson's on Cont., 382. Story on Cont., secs. 613, 614.

John Carson for the appellee, argued:

1st. That the contract is not usurious, because it is in no sense a loan, but a dealing with partnership funds. 8 Eng. Law & Eq. Rep., 62, Burbidge vs. Cotton. 15 Do., 477, Seagrave vs. Pope. 6 Bing. New Cases, 180, Silver vs. Barnes. There is no loan of money in the case, nor is such a loan necessary to constitute the deed a mortgage. It does not say the $ 460 is to be returned in any event, and how can it be a loan when there is no stipulation for its return? To constitute usury there must be a loan, and unless the principal is secured, or is to be returned at all events, it is not a loan. 6 Cowen, 653, Hall vs. Daggett. 9 Paige, 334, Quackenbush vs. Leonard. 22 Barb., 124, Pomeroy vs. Ainsworth. That the contract is one of partnership, and not a loan of money, is apparent [**11]  from the fact that the mortgage nowhere stipulates for a return of the money advanced, but for the payment of the weekly sums of money due by each shareholder. Robertson was interested in the common fund out of which he was paid when he sold his stock to the association, and he is now interested in every dollar repaid, and has expressly stipulated for the benefit of that which he now terms usury, by taking stock and selling it to the association; for its charter, and the act of 1852, ch. 148, secs. 6 & 7, and the mortgage, show that one of the purposes of the association was to purchase this stock, and Robertson, by his sale, got the benefit of the very provision which he now seeks to strike down as usurious. To render the contract void for usury, the papers must show on their face an unquestioned case of usury, and the bill will not be dismissed unless it shows the usury beyond doubt. 4 G. & J., 420, Chambers vs. Chalmers. 2 Md. Ch. Dec., 513, McKim vs. White Hall Co. How can the court discover, from the face of these papers, either a usurious intent, or a reservation of more than is legal, when they do not disclose the time the association will last, and, consequently, the amount [**12]  the members will pay in?

2nd. That this mortgage is not obnoxious to the act of 1825, ch. 50. That act has received a judicial exposition in the case of Cole vs. Albers & Runge, 1 Gill, 424. The court there say, the design of the act was to prevent liens on property, to the prejudice of creditors, for amounts and claims never contemplated by the parties at the time of its execution, and of which the deed, by its terms, gave no notice. The present mortgage is not within this act, according to this exposition of it, nor is it within the mischief which the act seeks to prevent; for it contains a clearly expressed contract and one carefully limited to interest, dues, ground-rent, taxes and insurance. Though the time be uncertain it may be approximated, or the proceeds of sale may be invested and applied in payment of the mortgage as it becomes due, or the whole be paid off at once, with rebate of interest. There is no more objection to this mortgage, on the ground of uncertainty as to time, than to one given to secure an annuity. 2 Md. Ch. Dec., 64, Peyton vs. Ayres. 1 H. & G., 280, Buchanan vs. Deshon. But, besides this, the present mortgage is expressly authorised by the 7th sec.  [**13]  of the act of 1852, ch. 148, whatever may be the construction of that of 1825, ch. 50. If there is any conflict between them, the act of 1825 is repealed pro tanto by that of 1852.

3rd. That the acts of 1833, ch. 181, and 1839, ch. 9, embrace this case. They require a conveyance by way of mortgage and an assent to the passing of a decree, and both these are shown by the record. And again, the act of 1852, ch. 148, sec. 9, gives to building association mortgages the benefit of the act of 1833, and its supplements. The form of the decree is such as is authorised by the act of 1839, ch. 9. The propriety of the decree, the validity of the sale under it, the amount of the mortgage debt, or whether there be any mortgage debt due, can only be inquired into after the passage of the order nisi. 3 Md. Ch. Dec., 39, Eichelberger vs. Harrison. 5 Md. Rep., 101, Hays vs. Dorsey. Until then the proceedings are ex-parte, and whether the decree be merely that the property be sold or be in the form of the present one, "unless the defendant pay the mortgage debt," it is immaterial and not error; because the decree is not a judicial decision upon the amount due under the mortgage, nor is such decree [**14]  conclusive against the mortgagor in this respect. Whether the account filed with the mortgage is correct or not, this court cannot determine on this appeal. The objection is to be made at the ratification of the sale. You can then show any cause why there should be no sale, either that the whole debt, or a part of it, has been paid.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*406]  BARTOL, J., delivered the opinion of this court.
It has been decided by this court, that from a decree passed under the act of 1833, ch. 181, and its supplements, an appeal lies.  Williams vs. Williams, 7 Gill 302. Hays vs. Dorsey, 5 Md. 99. On such appeal, this court will review the proceedings as presented by the record, examine the terms and conditions of the mortgage, and determine whether the decree is in conformity therewith. In a proceeding under that act the court has no power to pass any decree, which is not in conformity with the conditions of the mortgage, and embraced in the terms of assent to the decree, contained in the mortgage itself.
In this case the decree ascertains the sum of $ 336.09 to be due [**15]  from the appellant to the appellee, and directs, "that unless the mortgagor shall, on or before the 27th day of August 1855, pay to the mortgagee, or bring into court to be paid to him, the sum of $ 366.09, together with the costs of this proceeding," that the mortgaged property be sold.
That sum is the amount stated to be due in "the statement of claim" filed by the appellee under the 3rd section of the act of 1833. But, upon looking at the mortgage, it is obvious that no such sum could be due at the time of the decree. The mortgage contains no covenant or engagement for the payment of any such sum. It provides for the payment of:--
1st. "Interest monthly on $ 460.00."
2nd. "One dollar weekly, payable every Friday."
3rd. "All ground-rent, taxes and public dues, for which the mortgaged property may be liable."
4th. "All fines imposed by the articles of association of the 

 [*407]  said body corporate, for neglect to make the said payments, or any of them."
5th. "To keep the mortgaged property fully insured from loss by fire, for the benefit of the mortgagee, during the continuance of the mortgage."
It is also stipulated, that these obligations are to continue "until the time [**16]  arrives, when each unredeemed share of the said body corporate's stock shall be worth in cash, above all losses and liabilities, the sum of $ 200, and the said body corporate shall have sufficient funds on hand, to pay to the holders of every unredeemed share of its stock the said sum of $ 200, clear of all losses and liabilities."
There is no provision in the mortgage for the payment of the sum of $ 460, named therein as the consideration for which it was executed, nor any part of it as a mortgage debt.
The petition of the appellee alleges a default by the mortgagor for more than three months, "in not paying the weekly instalments and the interest secured by the mortgage."
Upon the face of the mortgage therefore, and on the allegations in the appellee's petition, the circuit court had no power to decree the sum of $ 366.09 to be due; and in so far as the decree directs the mortgagor to pay that sum to the mortgagee, or to bring it into court to be paid to him, it is erroneous.
The 2nd section of the act of 1833 simply empowers the court "to decree, that the mortgaged premises be sold, at any one of the periods limited for the default of the mortgagor." The proceedings contemplated [**17]  by the act are ex-parte, and the court is not authorised, by its decree, to determine judicially the amount due upon the mortgage. Before a sale can be made under the decree, the mortgagee is required to file a statement of his mortgage claim, verified by oath. That may be done either before or after the decree. See Hays vs. Dorsey, 5 Md. 99. But such statement is not conclusive, and the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi.
For the reasons above stated, we must reverse the decree of the circuit court. But considering that the appellee is entitled to a decree of sale, under his petition and the mortgage exhibited, 

 [*408]  our duty, under the act of 1832, ch. 302, sec. 6, is to remand the cause to the circuit court, in order that the decree may be corrected, and such further proceedings may be had as are contemplated by the act of 1833, and as may be necessary for "determining the cause upon its merits."
The act of 1832 imposes on this court the further duty of "determining and declaring the opinion of this court on all points which may have been made before it, or which [**18]  may be presented by the record." And in conformity with its requirements, we proceed to the consideration of the several questions presented.
It has been objected that this mortgage is inoperative, for want of compliance with the provisions of the act of 1825, ch. 50, in not specifying on its face the principal sum it is intended to secure, or the length of time during which the several sums thereby secured are required to be paid.
A conclusive answer to this objection is to be found in the provisions of the act of 1852, ch. 148, which, in express terms, authorises such mortgages as this, and makes them valid. This mortgage is not within the provisions of the act of 1825, or, if it be, that act is repealed pro tanto by the act of 1852, ch. 148, whereby building associations, incorporated under its provisions, are empowered to take such mortgages as the one before us, the very terms of the mortgage being prescribed by the 7th section of that act. The same act of 1852, by fair implication, brings such a mortgage as the present within the provisions of the act of 1833, ch. 181, and its supplements.
In the 9th section it is provided, "that the oath of the treasurer or other financial [**19]  officer of any such corporation, whose duty it may be to keep the books of accounts of any such corporation, shall be so taken and deemed to be, a full compliance with the provisions of the act of Assembly of 1833, ch. 181, and its supplements."
The objection that the several sums secured to be paid, are each too small, to be within the jurisdiction of the Chancery Court, can not apply to this case; because it appears by the petition filed, that there was due at the time of the decree, an amount sufficient to bring the case within the jurisdiction of the court.

 [*409]  In the further progress of the case, the duty will devolve on the circuit court, to ascertain the amount which the appellee is entitled to claim under the mortgage. It is obvious that the sum actually due, according to the covenants in the mortgage, cannot be ascertained by estimating the sum of $ 460, named in the mortgage, as if it were a debt secured, or money to be repaid, there being no covenant in the mortgage, or any obligation on the mortgagor, requiring him to repay that sum, or any part of it, as such. The mortgage debt can consist only of the several items above enumerated, that is to say, for money [**20]  due to the corporation on account of the monthly interest, the weekly instalments for fines imposed by the articles of the association, if any, and for ground rent, taxes and costs of insurance, if any have been paid by the corporation, which may be in arrear, after allowing to the appellant, the credits to which he may be entitled for payments made by him; and the balance due on said several items, constitutes the whole mortgage debt in presenti, and if the same be paid, a sale of the property will be prevented, and the decree will stand as a security for future instalments and liabilities.
In case of a sale of the mortgage property in entirety, it will be the duty of the circuit court to ascertain by proof the amount of the present value, in gross, of the sums secured by the mortgage, payable in future. To prescribe a precise rule for such ascertainment is not free from difficulty; because the period of time, during which they are to be paid, is not specified in the mortgage. In ascertaining that sum, the court cannot look beyond the mortgage itself; there is no such reference made in the mortgage to the "rules and articles" of the association as to make them part of the mortgage, [**21]  or to authorise the court to consider them, in construing the mortgage, or ascertaining the amount which the mortgagee is entitled to receive in presenti out of the proceeds of sale. It has been determined, that under a mortgage similar to the one under consideration, the mortgagor is not entitled to redeem, on payment of the money advanced to him by the society, with interest. Seagrave vs. Pope, 15 Eng. Law. & Eq. Rep. 477. But although the time during which the payments are 

 [*410]  to be made, is not specified, there is a contingency stated in the mortgage, on the happening of which the payments are to cease; and its duration may be ascertained by proof, or approximated with as much certainty and exactness, as the duration of a mortgage securing an annuity for the life of a person. It is true that there are no tables or precedents for such ascertainment as is required in the present case, because such mortgages are of comparatively recent origin, and we are without judicial decisions fixing the rule of ascertainment. We are of opinion, however, that the true rule is to ascertain by proof the probable duration of the society, then to estimate the aggregate amount of [**22]  the weekly and monthly instalments payable during that time, from that sum rebate a just amount for interest, and add thereto the arrearages due, after allowing for payments made to the society, and the sum thus ascertained is the amount which the mortgagee is entitled to receive in presenti in satisfaction of the mortgage.
To illustrate the view of the court, let it be supposed that on proof taken in the cause, it should be determined, that the association will continue for four years longer; then the ascertainment would be as follows:

________________________________________________________________________________

Weekly dues for 4 years (208 weeks) a $ 1,	$ 208.00	
Interest on $ 460, 4 years,	110.40	
	$ 318.40	
From this rebate interest thereon for 1/2 the time,	
  (2 years,)	38.20	
	$ 280.20	
To this add arrearages due after allowing payments	
  made,	
________________________________________________________________________________

The sum in the case supposed would be the amount, which the mortgagee is entitled to be paid out of the proceeds of sale.
The only remaining question to be considered, is the objection to the decree urged by the appellant, on the ground that the mortgage is usurious in its terms. To this it is sufficient to say, that the contract, so far as it is disclosed upon the record, contains [**23]  no proof or element of usury. The only proof of the contract is to be found in the mortgage, which 

 [*411]  appears to be in all respects such an instrument as is contemplated by the act of 1852, the consideration for which, was not a loan of money to be repaid, but the sum of $ 460, paid to the mortgagor by the society, as the ascertained value in advance of his shares of stock in the corporation. And although, in the preliminary part of the mortgage, it is recited to be "a condition precedent to the money below being loaned to him that these presents should be executed," yet the consideration is stated to be $ 460, "in hand paid by the corporation to the mortgagor," while the mortgage contains no covenant or obligation whatever for the repayment of said sum or any part of it. This court cannot regard the principal sum named in the mortgage as in any sense a loan, nor the contract, as it appears in the record, usurious.
We have carefully considered the question of the legal operation and effect of mortgages to "building associations," such as are contemplated and provided for by the act of 1852, and have no hesitation in pronouncing them, if executed in conformity with the provisions [**24]  of that act, free from all objection on the ground of usury.
We adopt the views expressed by the court of Queens Bench in Silver vs. Barnes, 6 Bing, N. C. 180, and by the courts of chancery in England, in Burbidge vs. Cotton, 8 Eng. Law. & Eq. Rep. 57, and Seagrave vs. Pope, 15 Ibid. 477. This last case involved the construction of a mortgage, executed in conformity with the Statute of 6 & 7 Will. IV., ch. 32, almost identical in its terms with the mortgage before us.
In construing this contract, this court confines itself entirely to the terms of the mortgage--there being no other proof in the cause, and considering that there is no evidence of usury to be found in the record, we are not called upon to express any opinion as to the effect of usury in a contract, under our constitution and laws.
For the reasons above stated, the decree below will be reversed with costs in this court to the appellant, and the cause remanded for further proceedings.
Decree reversed and cause remanded. 

21 of 47 DOCUMENTS 

CHARLES CROOK and Wife, vs. STEWART BROWN and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 158; 1857 Md. LEXIS 31 

DECEMBER, 1857, Decided 

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

The original bill in this case was filed by the appellants, Crook and wife, on the 3rd of April 1854, against the heirs at law of Stewart Brown and Mary Lancaster. It alleges that said Brown and Lancaster, on the 16th of October 1826, executed a bond of conveyance, covenanting to convey certain real estate in the city of Baltimore to the complainant, Crook, in trust for his wife, in consideration of $ 1214, to be paid out of the wife's separate estate; that the purchase money has been fully paid, and that the complainants are entitled to have a conveyance, according to the purport of the bond. The prayer of the bill is for the appointment of trustee to convey the legal title to the complainants, and for general relief.

The infant heirs of Mary Lancaster answered by their guardian ad litem, neither admitting nor denying the allegations of the bill. The heirs of Brown, in their answer, admit the execution of the bond of conveyance and payment of the entire sum due their ancestor, claim no further interest or title in or to the property, submit to such decree as the court may think proper to pass, and in conclusion say: "They,  [**2]  however, deem it their duty to state, that they have been informed that said Charles Crook and wife, heretofore, by mortgage or otherwise, conveyed said property to the late Judge John Glenn, and that the heirs or representatives of the late Judge Glenn claim some interest or estate therein, of the extent or nature of which your respondents are not informed."

The complainants then, under leave, filed an amended bill, in which they allege, by way of amendment, that the defendants, the Browns, in their answer, have suggested that, by some sort of deed or instrument of writing, the property was conveyed to the late Judge John Glenn, by the complainants, and that the heirs and representatives of the late Judge Glenn claim some interest or estate therein, under a conveyance from the complainants, of the extent or nature of which the said defendants are not informed; that said heirs and representatives are in possession of the property, and that a solicitor of the court has entered his appearance in this case, ostensibly for the defendants, but, in truth, as the solicitor of said heirs and representatives, and with a view not of protecting the interests of the real defendants, but for [**3]  the benefit of said heirs and representatives, and in order to protect them in the enjoyment of the property under said alleged conveyance, which interest they are now claiming under some such pretended conveyance; that it is right and equitable, if said heirs and representatives should have the advantage of any difficulties that may be interposed in the way of a decree for the complainants, by the services of such solicitor, that they should also be made parties, and bound by the proceedings in the case, and that they should be required to show what interest they have or claim in the property, or right to oppose the decree in this case. The prayer is, that said heirs and representatives of Judge Glenn may answer both the original and amended bill, and may be decreed to deliver possession of the property to the complainants, and for such other and further relief as the complainants' case may require.

To this amended bill the representatives of Judge Glenn demurred, upon the grounds--1st. That it does not state such a case as entitles the complainants to any such discovery or relief as is thereby sought and prayed for. 2nd. That neither the original nor amended bill, separately [**4]  or together, state such a case as entitles the complainants to any such discovery or relief as is sought and prayed for by either of them, from or against these defendants. 3rd. That if the matters stated give the complainants any cause of complaint against these defendants, the same is properly determinable at law. 4th. That the so called amended bill is in no wise an amendment of, and introduces no matter essential to, or connected with, the relief prayed by the original bill, but refers to and embraces an entirely distinct and different matter, remediable, if at all, in equity, by a separate and distinct bill only. 5th. That the amended bill is multifarious, seeking discovery and relief in regard to matters totally separate and distinct, as against parties in no wise connected, in regard to the said or the same matters, with each other, and not proper to be made parties defendants to one and the same bill, touching said matters and their several and distinct interests therein. 6th. That the relief prayed against the parties to the amended bill is distinct and unconnected, not depending upon the same, or upon analogous or common liabilities or equities, not applicable to the same [**5]  or a common subject matter, or to any common interest or liability in the parties, or any common relation to the same subject matter. 7th. That there is no allegation in the amended bill of any wrong, whatever, done by these defendants to the complainants, that furnishes ground for the interposition of any court, either of law or equity. 8th. That there is no foundation laid in the amended bill for the discovery therein sought, and no allegation of any fact or equity entitling the complainants thereto, and that the discovery thereby sought is not material to the relief therein prayed, even if the same were properly sought. 9th. That the defendants to the original bill are not made parties to the amended bill, (this ground of demurrer was abandoned in argument.) 10th. That the discovery prayed by the amended bill is in regard to matters contained and alleged in the original bill, in regard to which no relief is prayed by the amended bill against these defendants.

The court (KREBS, J.,) passed an order sustaining the demurrer, from which order the complainants appealed.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

To a bill to enforce performance of a contract for the sale of land, and a conveyance of the title from the heirs at law of the vendors, the adult defendants, in their answer, admit the contract and payment of the purchase money, so far as they are concerned, disclaim title, and submit to a decree, but suggest to the court that they have been informed that the complainants, by mortgage or otherwise, had conveyed the property to G., now deceased, and that his heirs or representatives claim some interest or estate therein, of the nature or extent of which the defendants are not informed. An amended bill was then filed, in which, after stating the above suggestion, the complainants allege that the heirs of G. are in possession of the property; that a solicitor has appeared in the cause, ostensibly for the original defendants, but, in truth, for these heirs, in order to protect them in the enjoyment of the property which they are claiming, under some such pretended conveyance; that if they can have the advantage of the services of such solicitor, they should be bound by the proceedings, and be required to show what interest they have or claim in the premises. The bill then prays an answer from G's heirs to both bills, that they may be decreed to deliver the possession to the complainants, and for further relief. To this amended bill the heirs of G. demurred. HELD:

That this demurrer must be sustained, because the complainants could not, upon this amended bill, make the heirs and representatives of G. parties to the cause, for the purposes stated in their pleadings.

The heirs of G. could not, under this answer of the original defendants, and through them as defendants to the original bill, have defeated the complainants' right to the relief sought against such defendants, representing the vendors of the property.

The answer of the original defendants makes no defence upon any claim of G's heirs to the property, and if designed to do so, is insufficient for the purpose, the reference to such claim being but a mere suggestion to the court, containing no issuable averment or allegation of fact.

The rules of pleading require something more than loose hearsay declarations, especially when they are not relied on as matter of defence to the bill: a party will not be permitted to delay the bringing of a suit to issue, by merely alleging an interest in third persons.

The vendee of a purchaser may proceed in equity both against such purchaser and his vendor, to obtain the legal title, but it does not follow that when a purchaser files a bill against his vendor, his assignee or vendee must necessarily be made a party, merely because such vendee has an interest in the property.

The purchaser and his vendee may join in a bill against the original vendor, in order to obtain a title directly to the second vendee, but in such case there should be no conflict between the complainants themselves; their interests should be consistent.

In this case the complainants and the heirs of G. could not unite in a bill against the defendants, the original vendors, except upon the concession that the title of the complainants had passed to G., and that his heirs were entitled to a conveyance.

The question, who are necessary parties to a suit in equity, depends in a great measure upon the object as well as the subject of the bill, the relief sought, the privity between the parties, and the manner in which their several interests may have arisen: it is impossible to state a general rule applicable to all cases.

This amended bill is not a bill of discovery, and besides, if the complainants have assigned their interest to G., they knew what the transaction was, and desiring to invalidate it, should have stated a case which his heirs can answer and defend.

The property being the same, all the parties to this case may be said to be proper and necessary, as having an interest in the subject matter of controversy, yet the equity against G's heirs, who claim under the complainants, and the other defendants who are the complainants' vendors, is not the same, nor of the same character; their titles are perfectly distinct and unconnected.

A bill framed with the double aspect of first acquiring a title from the complainants' vendors, and then in the same case to litigate the title of other parties in no privity with such vendors, but who claim under the complainants themselves, is multifarious.

There is no head of equity jurisprudence under which a party, in possession of land, can be brought into court and made to show his title, in order that that title may be defeated, and the possession delivered to the complainants, for this would be substantially to give to a chancery suit the effect of an action of ejectment.

Where the only relief prayed for, and the only case made by the bill against one of several defendants, is to make him show his title and deliver possession of land, no decree can be passed against him, and it is clear that no one ought to be made a party defendant, against whom no decree can be passed.

There are some circumstances under which a court of equity will amove a party in possession and put another in, but these cases are of peculiar character.

This amended bill cannot be sustained on the principle of bills quia timet, the complainants not having the legal title, and not being in possession, which are essential facts in such cases, and such an equity cannot be blended with the case made and relief sought against the original defendants.  

COUNSEL:
Jervis Spencer for the appellants:

The question in this case is,  [**6]  whether the amended bill sufficiently states an interest in the Glenns to make them parties to the proceedings. The bill is simply for the conveyance of a legal title, according to the covenants in a bond of conveyance, and the Glenns are made parties as claimants of a supervening equity, which, if well founded, takes away the equity of the complainants. The complainants could not obtain their rights until this supervening objection of the Glenns was removed, and, in this respect, the amended bill is like the case of a bill of interpleader. If they do not set up such a claim as the demurrer admits, their proper defence is a disclaimer, (1 Harrison's Ch. Pr., 341; 2 Madd. Ch. Pr., 336; Equity Draftsman, 620; Story's Eq. Pl., secs. 838, 838, (a.) note 3,) and if they maintain their claim, they should present it to the court, in order that the court may know how far they have equity. It is also necessary that the court should know the ground of their claim, in order to understand whether it cuts out the complainants' equity, and whether it would be proper to pass the decree against the other defendants. The complainants were not bound to set out what the title of the Glenns was, and thereby [**7]  stultify and estop themselves, and especially not where the rights of a feme covert are concerned. The bill alleges the claim to be a pretended one, supported by possession. It is said we ought to know what this title is, but how are we to know this--especially how is a feme covert to know it? Suppose the instrument under which they claim was forged, or there was fraud or duress in obtaining it? In such a case, should we be bound to state what that title is, further than to say it is a pretended one?

Courts of equity always embrace in one suit every thing relating to the same subject, in order that complete relief may be given ut sit finis litium. This could not be done without making the Glenns parties, and even if they are not necessary parties, they are competent parties, and their being included is not a vice in the proceedings. The matters stated in the amendment immediately affect the equities of the case, and the complainants could have no complete relief without embracing the subject of the amendment. The defendants, the Browns, might be liable to another suit by the Glenns, after a decree against them in this case, if the latter are not made parties, and bound by the [**8]  proceedings, and thus to avoid multiplicity of suits, they were properly brought in as parties.

The demurrer admitting every thing charged in the amended bill, the allegation of the possession of the property by the Glenns, the employment of a solicitor by them to interpose difficulties in the progress of this cause, in order to protect them in the enjoyment of the property, and their setting up a claim under some pretended conveyance from the complainants; all this is a sufficient wrong to justify the interposition of a court of equity, when no relief can be had at law, (the complainants having only an equity in the property sued for,) and clearly gave the complainants a right to call them in as parties to this proceeding. In Story's Eq. Pl., sec. 72, in considering who are proper and necessary parties to a bill, it is said: "It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented. Hence it is a general rule in equity that [**9]  all persons materially interested, either legally or beneficially, in the subject matter of the suit, are to be made parties to it." Here the subject matter of the suit is the title to the property in which the Glenns are interested, as well as the other parties. If they were complainants, and deducing title through us, they must have made us parties. In secs. 136, 137, those persons are said to be necessary and indispensable parties, when no decree can be passed respecting the subject matter of litigation, until they are before the court. Here there could be no decree, unless the Glenns were brought before the court, the defendants having disclosed them as parties having an interest in the subject matter of the suit. In secs. 153, 154, it is held that the assignor of an equitable interest, where the assignment is disputed or denied, is a necessary party to establish the right of the assignee. It can make no difference whether the assignee or assignor sues; in the latter case the assignee must be made a party. The bill, it is true, must not be multifarious; but in sec. 534, it is said, that though the parties claim under different titles, still if the general objects of the bill will [**10]  be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against them all; and in secs. 323, 324, it is held that even if a party has no interest, a demurrer will not lie if the bill states that he claims to have some interest. In secs. 271, 271 (a.,) 271 (b.,) it is said to be sufficient to avoid the objection of multifariousness, if each of the parties has an interest in some matters in the suit; that is, if he is in some way connected with the subject matter of the suit. Again, they were necessary parties on the ground of the discovery sought from them. 1 Hen. & Munf., 330, Key's Excrs. vs. Lambert. See, also, as to who are proper parties, 4 Cowen, 682, Fellows vs. Fellows. 1 Ves. Sen., 426, Plummer vs. May. 4 Younge & Coll., 345, Plumbe vs. Plumbe. 11 G. & J. 428, Oliver vs. Palmer & Hamilton. 2 Md. Ch. Dec., 298, Oliver vs. Caton. 6 H. & J. 21, Tongue vs. Morton. 1 Gill 235, Berry vs. Pierson. 1 Md. Ch. Dec., 156, Crain vs. Barnes & Fergusson, affirmed in 8 Gill 392. 1 Md. Ch. Dec., 95, Cullison vs. Bossoum. 3 H. & J. 278, Coale vs. Mildred's Admrs. 1 Story's Eq., sec. 28. There is no distinction between the case of [**11]  a specific performance of a contract and any other, in regard to parties; all parties in interest must be brought in. Story's Eq. Pl., secs. 255, 272, 476, 477, 572. The subject of this suit is the property itself, the object of the suit is the possession and enjoyment of the property, the relief sought is a conveyance of the title to the property, and in any aspect of the case, whether we regard the subject matter, the object, or the relief asked, these parties are interested, and therefore proper parties.

The objection of lapse of time and laches should have been made by the parties regularly and properly made defendants to the original bill. They, the Browns and Lancasters, make no such defence, but admit the contract, and say they are willing to execute it. The Glenns, in the position they now occupy, refusing to answer, and demurring to the bill, have no right to set up such a defence.

The Glenns not having the legal title, no relief could be prayed against them as to the conveyance of the property, and the Browns, not having the possession, no relief need be prayed against them as to the possession. The prayers for conveyance against the Browns and possession against [**12]  the Glenns, are the same they would have been, if the whole subject had been embraced in the original bill. The prayer for general relief in both the original and amended bill, is sufficient, if there were no other prayer; and it is sufficient if the Glenns were only formal parties, in order that they should be bound by the decree.

For these reasons it is insisted that none of the grounds of the demurrer are tenable, but if there be any thing technically defective in the bill, the court will remand the case for amendment, under the act of 1832, ch. 302, sec. 6.

F. K. Howard and S. T. Wallis for the appellees, argued that the demurrer was properly sustained:

1st. Because the amended and original bills, together, set up no case as against the representatives of Glenn, which, if true, entitles the complainants to relief at law or in equity. The original bill does not refer to the representatives of Glenn directly or indirectly. The amended bill contains the suggestion, in the answer of the Browns, that Glenn's representatives claim some interest in the property under a conveyance from the complainants, but the bill itself does not allege, in any way, that the matter so [**13]  alleged is true. It alleges nothing, except that the Glenns are in possession. It does not declare that possession to be either adverse or wrongful, or aver that the complainants are entitled to it. It does not deny the execution of a deed by the complainants to the Glenns, as suggested in the answer of the Browns, though that is a matter necessarily within the knowledge of the complainants, nor does it allege that the Glenns are in any way interfering with the rights of the complainants, obstructing their remedies or otherwise giving them cause of complaint. Upon such allegations, or rather such absence of allegation, no relief, by way of discovery or otherwise, can, it is submitted, be administered any where. Story's Eq. Pl., secs. 241, 255, 262, 565, 572. Story's Eq., secs. 74, 716. And it is further insisted, that no case can be found where a court of equity has enforced the specific performance of a contract, after such a lapse of time from its execution, and such laches as have intervened in this case. 1 H. & J. 223, Beall vs. Prather.

2nd. Because by said bills the complainants have joined as defendants parties whose interest and liabilities, in regard to the subject [**14]  matter of controversy, were totally distinct and separate, not based on or connected with any common right, title or possession in regard thereto, and, therefore, multifarious. It is not those who have an interest in the subject matter, but those who have an interest in the object of the suit, that are necessary parties. Story's Eq. Pl., secs. 72, 271, 272, 277. 4 Mylne & Craig, 460, Wood vs. White. 3 Do., 63, Tasker vs. Small. 1 Jac., 490, Moale vs. Smith. These authorities especially refer to bills for specific performance of contracts, and establish the general rule, that in such cases those persons only are to be made parties who were parties to the contract. The Glenns are not, and could not be, alleged to have been interested in, or parties to the contract of sale between the appellants and the original vendors of the property. See also, on this point of necessary parties and multifariousness, 5 Gill 359, White vs. White. 2 Md. 174, Williams vs. West. 8 Gill 1, Thomas vs. Doub. 4 Cowen, 682, Fellows vs. Fellows. 6 Johns. Ch. Rep., 139, Brinkerhoff vs. Brown. 10 Md. 364, Griffin & Lee vs. Merrill.

3rd. Because if any case is hinted against the Glenns, by the [**15]  complainants, it is one merely of wrongful possession, properly determinable at law, or if the same could be determinable in equity, it could only be by a distinct and separate bill, with sufficient averments. Story's Eq. Pl., secs. 476, 477. 19 How., 277, Hipp vs. Babin. This bill cannot be regarded as a bill of peace, because those only who have a clear, legal, and equitable title, have the right to file such a bill. 18 How., 265, Orton vs. Smith.

4th. Because there was no such wrong stated, nor any foundation laid in the amended bill, as entitled the complainants to the discovery prayed. The only allegation of wrong done by the Glenns, is that they claim under some pretended conveyance, which conveyance they allege was made by the complainants themselves. They are bound, in law, to know what this conveyance was. It is not our fault if the truth would estop them; their case estops and stultifies them, not we. There is no such wrong stated as entitles them to a discovery. Story's Eq. Pl., secs. 571 to 575. 2 Story's Eq., sec. 1490. 1 Johns. Ch. Rep., 543, Gelston vs. Hoyt. If the relief asked for by the bill fails, the discovery which is ancillary to it must fail also. 11  [**16]  G. & J. 445, Oliver vs. Palmer & Hamilton. 1 Md. Ch. Dec., 95, Cullison vs. Bossom.

5th. Because the discovery sought by the amended bill was not material to the relief therein prayed, or connected therewith. Story's Eq. Pl., secs. 565, 566. 2 Story's Eq., sec. 1497.

6th. As to remanding the case under the act of 1832, it is insisted that if a bill is demurrable for multifariousness, there is an end of the case, and it must be dismissed at once. 6 G. & J. 171, Evans vs. Iglehart. 2 Md. 37, McElderry vs. Shipley. 5 Gill 359, White vs. White. 10 Md. 364, Griffin & Lee vs. Merrill.  

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

OPINIONBY:
TUCK 

OPINION:

 [*168]  TUCK, J., delivered the opinion of this court.
The original bill was filed by the appellants against the Browns and Lancasters, to enforce the performance of a contract for the sale of certain property in Baltimore, for which they allege the purchase money had been paid, and claiming a conveyance of the title from the defendants, as heirs of the vendors. The infant defendants answered in the usual form, by their guardian, and the others, by their answer, submit to such decree as may be passed;  [**17]  but in their answer they say: "They, however, deem it their duty to state that they have been informed that said Charles Crook, Jr., and wife, heretofore, by mortgage or otherwise, conveyed said property to the late Judge Glenn, and that the heirs or representatives of the said Judge Glenn claim some interest or estate therein, of the extent or nature of which your defendants are not informed." The complainants then filed an amended bill, in which, after reciting the original bill, they "show and charge, by way of amendment, that the defendants, in their answer, have suggested that by some sort of deed or instrument of writing, the said property was conveyed to the late Judge Glenn, by the complainants, and that the heirs and representatives of the said 

 [*169]  Glenn claim some interest or estate therein, under a conveyance from the complainants, of the extent or nature of which the said defendants are not informed;" and the complainants further show that the said heirs and representatives are in possession of the property; that a solicitor of the court has appeared ostensibly for the original defendants, but, in truth, as the solicitor of the heirs and representatives of Glenn,  [**18]  in order to protect them in the enjoyment of the property, under the said alleged conveyance, and which they are claiming under some such pretended conveyance; that if they can have advantage of the services of the solicitor, they should be bound by the proceedings in the cause, and be required to show what interest they have or claim in said premises, or right to oppose the decree in this cause. The bill prays an answer from Glenn's heirs and representatives to the matters set forth in both bills; that they may be decreed to deliver the possession of the property to the complainants, and for further relief. The Glenns appeared, in obedience to the subpoena, and demurred to the amended bill, assigning several causes, which demurrer the court below sustained. The complainants appealed before any further proceedings between the original parties, and the only question for inquiry here is, whether, upon the amended bill, the complainants could make the Glenns parties to the cause, for the purposes stated in their pleadings.
The case was argued on the part of the appellants, as if the Glenns could, under the answer of the Browns, and through them, as defendants to the original bill, have [**19]  defeated the complainants' right to the relief they sought against the defendants, representing the vendors of the property. But this could not have occurred. The Browns submitted to a decree, and, as the infant defendants were not concluded by the guardian's answer, proof as against them was all that the complainants required. The Browns made no defence upon any claim or pretensions of Glenn to the property; and if they had so dedesigned, we cannot regard that part of their answer as sufficient for the purpose. It appears to have been intended as something for the information of the court, which these defendants 

 [*170]  deemed it their duty to furnish, but to what end, is not stated. It contains no averment or allegation of fact to which the complainants could have replied, and issue been taken. The rules of pleading require something more than loose hearsay declarations of this kind, and especially when they are not relied on as matter of defence to the bill.  Chambers vs. Chalmers, 4 G. & J. 420. In Jones vs. Slubey, 5 H. & J. 372, it is said, a defendant will not be permitted to delay the bringing of a suit to issue, by merely alleging an interest [**20]  in third persons.
Besides, if this matter had been properly relied on as a defence, we do not perceive how it can avail as a ground for non-compliance with the original agreement. We do not say that a vendee may not so deal with the property as to deprive himself of all interest in the enforcement of the contract of purchase, but there is nothing to show that the complainants have done so in the present case. It might happen that a deed from persons in the attitude of the Lancasters and Browns would be necessary to enable the complainants to perform an agreement with a party in the supposed condition of Judge Glenn. If the latter purchased the property from the complainants, those claiming under him might proceed in equity against the complainants, as well as their vendors, to obtain the legal title; but it does not follow that when a purchaser files a bill against his vendor, the assignee or vendee of the complainants must necessarily be made a party, merely because he has an interest in the property. The purchaser and his vendee or assignee might join in a bill against the original vendor, for the purpose of obtaining a title directly to the second vendee, but there should be no [**21]  conflict between the complainants themselves.  Ellicott vs. Ellicott, 2 Md. Ch. Dec. 468. Their interests should be consistent. Adams' Equity, 312. Hence the complainants and the Glenns could not unite in a bill against the Browns and Lancasters, except upon the concession that the title of Crook had passed to Judge Glenn, and that his heirs or devisees were entitled to a conveyance.
Though it is the constant aim of courts of equity to do complete justice, by settling the rights of all persons interested in 

 [*171]  the subject matter of the suit, so that the performance of the decree may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented, it is very difficult in many cases to determine who are the necessary parties. Story's Eq. Pl., sec. 72. The question must depend, in a great measure, upon the object, as well as the subject of the bill, the relief sought, the privity between the parties, and the manner in which their several interests may have arisen. It is impossible to state a general rule applicable to all cases. The most eminent chancellors have used different language in defining the doctrine [**22]  as to parties; and the elementary works on pleading, as well as decided cases, show a great variety of exceptions. See Mitford Pl., 164.  Poore vs. Clark, 2 Atk. 515. 1 Ves., Jr. 29.  Palk vs. Clinton, 12 Ves. 58. Cockburn vs. Thompson, 16 Ves. 325. Wilkins vs. Fry, 1 Mer. 262, in which the subject is discussed by Lord Redesdale, Sir Wm. Grant, and Ld. Chancellors Hardwicke, Thurlow, and Eldon. The numerous citations by the counsel also show in what uncertainty the point is involved. Calvert, in his Treatise on Parties in Equity, (17 Law Lib. 11,) suggests, as the result of the authorities, "that all persons having an interest in the object of the suit, ought to be made parties;" but Mr. Justice Story doubts whether such a rule would remove a single difficulty in examining the subject, (Eq. Pl., 72, note.) For the rule stated negatively, see Calvert, 75. Adams, however, refers the determination of the question as to parties to the character of the relief sought, and considers as necessary parties all persons interested in that relief. Adams' Eq., 312.
It appears to us, however,  [**23]  that the appellants, if supported by either of these definitions, cannot maintain their standing in court consistently with other recognized rules of pleading. The property being the same, all these parties may be said to be proper and necessary, as having an interest in the subject matter of controversy; but the equity against the Glenns and the other defendants is not the same, nor of the same character. The complainants seek, in the first place, to acquire a title from their vendors, or those representing them, and that 

 [*172]  being established, they propose, in the same case, to litigate another question of title with other parties in no sort of privity with the Browns and Lancasters, but who set up a claim under the complainants themselves. If the bill had been filed originally with this double aspect, the appellants might probably have been met by a demurrer for multifariousness; for these are perfectly distinct and unconnected titles to the same property, and the considerations on which such demurrers are allowed, are applicable here. Story's Eq. Pl., 271. Calvert, 82. In cases for specific performance, the general rule is said to be, "that it is only necessary [**24]  to make those persons parties who are parties to the contract." Calvert on Parties, 291, sec. 24. Wood vs. White, 4, Mylne & Craig, 483. Tasker vs. Small, 3 Do. 63.  2 Jac. & Walk. 538. Story's Eq. Pl., 226, C. And it has been decided to be multifariousness to include in such a bill a prayer for relief against third persons who claim an interest in the estate, but were unconnected with the sale. Mole vs. Smith, Jac. Rep., 490. Story's Eq. Pl., 272.
There is a rule, however, applicable here, about which there can be no dispute, and that is, that a person ought not to be made a defendant against whom no decree can be passed. Eq. Pl., sec. 231.  Hoye vs. Johnston, 2 Gill 291. The object of the amendment is to bring the Glenns into court, that they may be made to show their title, if any, to the premises, that that claim may be defeated, and the possession delivered to the complainants. We know of no head of equity jurisprudence under which this can be maintained. It would be, substantially, to give to a chancery suit the effect of an action of ejectment. This is the relief prayed for, and there is no case [**25]  made by the bill which authorizes any other under the general prayer. There are some circumstances under which courts of equity will amove a party in possession and put in another, but these cases are of peculiar character. The assertion of the power in the present case, has not been supported by a single authority.
The principles applicable to bills of discovery cannot aid the appellants. It does not appear to be a proceeding of that 

 [*173]  kind. Besides, if the complainants have assigned their interest to Judge Glenn, they know what the transaction was, and if they desire to invalidate it, the bill should state a case which his heirs can answer and defend. So, on the other hand, if the title of Glenn be a merely pretended claim, the real owners cannot be affected by it in any proceedings they may hereafter institute for the recovery of the property.
Nor can the amendment be sustained upon the doctrine of bills quia timet. The complainants have not the legal title, and are not in possession, which we take to be essential facts in such cases. 1 Madd. Chy. 225. 2 Story's Eq., 694, et seq. Orton vs. Smith, 18 How. Rep. 265. And, if the amended bill did not [**26]  present these defects, such an equity could not be blended with the case made and the relief sought against the original defendants.
Order affirmed, and cause remanded. 

22 of 47 DOCUMENTS 

JOSHUA S. INLOES' Lessee, vs. GEORGE C. HARVEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 519; 1857 Md. LEXIS 61 

DECEMBER, 1857, Decided 

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

Ejectment brought by the appellant, on the 9th of May 1855, to recover certain leasehold property then in the possession of the appellee. Plea, non cul.

Exception. The plaintiff gave in evidence certain deeds proving title in John Zell and Alexander Harper, on the 24th of September 1850, on which day they conveyed the property to Thomas W. Vigurs, who took possession thereof. The plaintiff then further offered as evidence of his title a deed from Vigurs to him, as trustee, dated the 10th of March 1854, under which he took possession of the property. This deed recites the appointment by the circuit court for Baltimore county, as a court of equity, in a cause therein pending, of Inloes as trustee of the complainants in said cause, under a deed of trust filed therein, and that, on the petition of the complainants, it was ordered by said court, on the 10th of March 1854, that the trustee, Inloes, should invest the net proceeds of sale in said case, or so much thereof as was necessary, in the two parcels of land mentioned in said petition, one of which is that conveyed by the deed. The deed then proceeds, in consideration of $ 1750,  [**2]  paid by Inloes to Vigurs, the receipt of which is acknowledged, to convey the property to Inloes, as trustee as aforesaid.

The defendant then gave in evidence, on his part, the record of certain proceedings in equity in the circuit court for Baltimore city, instituted by Susan E. Taylor, against Vigurs and others, the object of which was to set aside, for her benefit, the title of Vigurs, under the deed to him from Zell and Harper, as having been acquired by him fraudulently, he having taken the title to himself, in his own name, as of his own absolute estate, whereas he should have taken it as trustee for the complainant, having purchased the same with her money, and to cause the same to be conveyed and assured to her. This record shows that this bill was filed on the 21st of February 1854, and the subpoena thereon, issued the same day, was served on Vigurs before the 28th of February 1854, on which day it was duly returned. After answer and other proceedings, a decree was passed on the 30th of November 1854, by which the title of Vigurs was annulled, and he was ordered to convey and deliver the property to Harvey, as trustee for the complainant, under a marriage settlement between [**3]  the complainant and Wm. B. Dukehart, whom she had married pending the proceedings, and who was duly made a party thereto. On the 15th of December 1854, an injunction was issued to compel Vigurs to perform the decree, and the persons in possession to deliver up the property, which was returned "non est" as to Vigurs, and was served upon Inloes on the 21st of December 1854, who refused to obey the same. A writ of habere facias possessionem was then issued on the 12th of January 1855, and the sheriff, by virtue thereof, put Harvey in possession of the property, and he continued in the possession so acquired, and held the property at the time of bringing this ejectment, under the aforesaid decree, and as trustee of said Susan E. Dukehart. Inloes was never made a party to the proceedings under which this decree passed.

Whereupon the plaintiff asked the court to instruct the jury that, upon the evidence offered, if believed by them, the legal title to the possession of the premises, for the recovery of which this action is brought, was vested in Inloes by the deed of assignment from Vigurs to him, and remained vested in him at the time of the demise laid in the declaration, and that [**4]  the plaintiff is entitled to recover, notwithstanding the decree and other facts offered in evidence by the defendant. This prayer the court (LEE, J.) refused to grant, and to this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A purchaser pendente lite is bound by the judgment or decree rendered against the party from whom he makes the purchase.  

COUNSEL:
Edward O. Hinkley and Thos. S. Alexander, for the appellant:

The rule pendente lite nil innovetur, is not universal in its application. There are cases of hardship in which it does not apply, and there is no reason why a party, situated as Inloes is in this case, should not be called in and have an opportunity of making defence, before he is peremptorily turned out of possession, without notice. He was never made a party to the proceedings in which the decree was passed, and was a bona fide purchaser, pendente lite, for a valuable consideration and without actual notice. Although the decree entered in his absence is prima facie evidence against him, it would be competent for him, on any supplementary proceeding, to show collusion between the parties to the decree, or any other circumstance rendering it against equity to enforce the decree against him. We contend that he should not be turned [**5]  out without notice, and that the writ of habere facias possessionem will never go against such a purchaser, without notice first given to him to show cause. In 2 Story's Eq., sec. 908, it is conceded that the title of purchasers pendente lite is not "absolutely null and void at all times, and for all purpose," and that the title so acquired must, in some cases, be pursued, and it is there said, an injunction will be granted to restrain a party from making vexatious alienations of real property pendente lite, for in every such case the plaintiff may be put to the expense of making the vendee a party to the proceedings; and, at all events, his title, if he prevails in the suit, may be embarrassed by such new outstanding title under the transfer. Chancellor Kent always held, that you must, in some cases, follow the title acquired pendente lite. See, also, Story's Eq. Pl., secs. 351, 351 (a,) for cases in which it is held to be necessary to make such a purchaser a party to the proceedings. And, further to sustain our views on this point, we refer to Mitford's Pl., 73, 74. Calvert on Parties, 100. 1 Hogan, 202, L'Estrange vs. Robinson. 4 Dow, 435, Daly vs. Kelly. 2 Drury & Warren, 362,  [**6]  Higgins vs. Shaw. 2 Ves. & Bea., 200, Metcalfe vs. Pulvertoft. 13 Simons, 516, Solomon vs. Solomon. 11 Beavan, 502, Johnson vs. Thomas. 1 Peters, 149, Greenleaf vs. Queen. 4 Johns. Ch. Rep., 38, Green vs. Slayter. 2 Johns. Ch. Rep., 441, Murray vs. Lylburn. 11 Wend., 442, Parks vs. Jackson. 6 J. J. Marshall, 519, Yoder vs. Swearingen. 3 A. K. Marshall, 220, Murray vs. Johnson. 3 Littell, 365, Carr vs. Callaghan. 1 Iredell's Eq. Rep., 146, Proctor vs. Ferebee.

It is further insisted, that, whatever may be the effect of the decree on the conscience of a party purchasing pendente lite, with actual or constructive notice of the proceedings, it cannot operate at law as a transfer of the legal title acquired by the purchaser, from such purchaser to the party claiming the benefit of the decree.

F. K. Howard and S. T. Wallis for the appellee:

The act of 1785, ch. 72, sec. 13, provides, that in all cases where a decree is passed for a conveyance, and the party against whom it shall pass shall neglect or refuse to comply therewith, such decree shall stand, be considered and taken in all courts of law and equity to have the same operation and effect as if the conveyance had been [**7]  executed conformably to such decree. If, then, Inloes was a party bound by this decree, the legal title to the property is, by force of it, vested in the defendant, the record showing that Inloes has refused to obey it. That he is so bound, is well settled. He was a purchaser pendente lite of the title of Vigurs. The proceedings had for their object to set aside that title as fraudulently acquired by Vigurs, and resulted in a decree annulling the title and decreeing a conveyance to the complainant. Pending this litigation, Inloes becomes a purchaser of this very property, and if ever a case could arise in which the rule pendente lite nihil innovetur can be applied, this is one. The general rule on this subject is clearly defined. Story's Eq. Pl., sec. 156, and 1 Story's Eq., secs. 405, 406, where it is said, that "a purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit." There is nothing to exempt this case from the operation of the general rule,  [**8]  which has been applied in numerous cases precisely similar, and has been sustained by repeated adjudications. See 1 Pet., 299, Mechanics Bank of Alexandria vs. Seton. 1 Johns. Ch. Rep., 566, Murray vs. Ballou. 7 Johns. Ch. Rep., 65, Jewett vs. Palmer. 7 Wend., 152, Jackson vs. Andrews. 2 Dana, 406, Watson vs. Wilson. 5 Ohio, 461, Bennet vs. Williams. 7 Blackford, 243, Green vs. White. 1 Strobhart's Eq. Rep., 180, Lewis vs. Mew. 1 Yeates, 574, Walker vs. Butz. 27 Penn. State Rep., 428, Hersey vs. Turbett. 31 Miss. Rep., 83, McCulsten vs. Miller. 22 Barb., 166, Harrington vs. Slade. 8 Ala., 570, Chaudron vs. Magee. 2 Randolph, 93, Newman vs. Chapman. 6 H. & J. 21, Tongue vs. Morton. 1 H. & J. 386, Garretson vs. Cole. 2 H. & G., 473, Frazer vs. Palmer. 2 Md. Ch. Dec., 301, Oliver vs. Caton. 7 Md. 537, Feigley vs. Feigley.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*524]  LE GRAND, C. J., delivered the opinion of this court.
There is but one question involved in this case, and we think the Superior Court decided it correctly. It is, whether a purchaser pendente lite is bound by the judgment rendered against the [**9]  party from whom he makes the purchase? This was an action of ejectment brought by the appellant to recover certain property of which he had been dispossessed under a writ of habere facias possessionem. The defence was, that in an equity proceeding against the person under whom he claimed, to set aside a conveyance alleged to have been made fraudulently, a decree was passed in conformity with the prayer of the bill, and the property secured to the complainant, and that during the pendency of this proceeding, the appellant purchased the property in question from the defendant. The Superior Court, in fact, decided that the appellant, being a purchaser pendente lite, was concluded by the decree in the equity proceedings, and, notwithstanding the very ingenious argument of the counsel for appellant, we are of opinion, decided correctly. We might cite many cases in affirmance of this view, but we content ourselves with a reference to sections 405 and 406 of 1 Story's Eq. Jur., where will be found, stated with clearness, the law applicable to the subject, and the reasons of public policy on which it rests. In section 405 it is said: "A purchase made of property actually [**10]  in litigation, pendente lite, for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice; and he will accordingly be bound by the judgment or decree in the suit." And in section 406 it is said: "Ordinarily, it is true, that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title. The litigating parties are exempted from taking notice of the title so acquired; and such purchaser need not be made a party to the suit. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy, for, otherwise, alienations made 

 [*525]  during a suit might defeat its whole purpose; and there would be no end to litigation. And hence arises the maxim, pendente lite nihil innovetur; the effect of which is, not to annul the conveyance, but only to render it subservient to the rights of the parties in litigation. As to the rights of these [**11]  parties, the conveyance is treated as if it never had any existence; and it does not vary them." See, also, 6 H. & J. 21, Tongue vs. Morton.
This disposes of the case which was before the Superior Court. If there was any fraudulent design on the part of those who were the parties to the equity proceedings, to defeat the appellant, the latter, on proof of the fact, and the additional one, that, in execution of such fraudulent intention, he was in point of fact defrauded, he has his remedy in equity.
Judgment affirmed. 

23 of 47 DOCUMENTS 

JOHN EAGER HOWARD AND ELIZABETH JERNYNGHAM vs. WILLIAM H. CARPENTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 259; 1857 Md. LEXIS 36 

DECEMBER, 1857, Decided 

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

The bill in this case, filed on the 7th of September 1852, by the appellee, against the appellants, alleges that in 1846, Carpenter entered into a written contract of lease with Mrs. Caton, under her signature, to lease of her a tract of land, near Catonsville, containing about ninety acres, particularly described in said contract, now in possession of Charles Z. Lucas, the agent and solicitor of the defendants, and that under this contract he entered into and remains in peaceable possession of the premises; that a few months subsequent to the making of this contract, Mrs. Caton died, leaving a will, under which the premises in question became the property of her daughter, Elizabeth Jernyngham, known as Lady Stafford, and that the legal title thereto is, by virtue of certain chancery proceedings, vested in the defendant, Howard, as her trustee; that said contract for lease stipulates for payment of annual rent, and for the erection, prior to executing a lease thereof, of a building on the premises, sufficient to secure the rent, but that Mrs. Caton died before any rent accrued, and Carpenter was unable to ascertain to whom it was [**2]  payable, no rent having been demanded of him by any one having or pretending authority from the owners to receive the same; that he believes Josias Pennington was the agent of Lady Stafford and other heirs of Mrs. Caton, representing them under a deed of trust, and assented to the non-payment of the rent until the title to the property should be made to Carpenter, or the affairs of Mrs. Caton arranged, and some assurance given that her said contract would be carried out and fulfilled, according to its purport and intent. He further alleges, as a reason for the non-payment of the rent, and not erecting the building aforesaid, that the contract, under which he took the premises, became lost or mislaid by Mrs. Caton, or her agents, and could not be found for a long period after her death, and that this contract was the only evidence and proof he had of the fact of such agreement of lease having been made, and the terms thereof, and he was fearful, and had reason to suspect, that her representatives would not comply with its terms. He then avers that, in violation of this contract, without making any demand on him for the rent, Lady Stafford has fraudulently, and against equity, procured [**3]  her trustee, Howard, to institute an action of ejectment, which is now pending against him, and seeks to turn him out of possession of the premises, and make the contract of no effect; that for a long period he has been seeking to get a lease of the premises, or some assurance that a lease would be made to him on payment of such rent as might be found due, and the erection of a building as aforesaid; that he is informed, and believes, that by law he cannot be made, and ought not, to pay rent for a period when, by reason of the cloud upon his title, and the great uncertainty of his getting a title thereto, the land was wholly useless and unprofitable to him; that he is willing to bring into court such amount of rent as it may decide to be due, or pay the same to Howard or Lady Stafford, as the court may direct, and that he would at any time have paid the rent, if he had, or could have, obtained any assurance that his contract would be respected, and the lease made to him accordingly. He avers his readiness and willingness to erect the building contemplated by the contract, whenever it shall be ascertained that a lease will be made to him, but that Lady Stafford and her trustee have [**4]  refused to acknowledge the contract, and have declared to him that under no circumstances will they make the lease, as provided for in said contract, and under these circumstances, and particularly when it is considered that the contract of Mrs. Caton was not in his possession, but beyond his reach and control, he alleges, as matter of law, that he was not bound to seek out the party entitled to the rent, and make a tender thereof, when it was very uncertain to whom the rent was payable, until a division of the property should take place; and to sustain his assertion of the difficulty of his position, he avers that the trustee in whom the property was intended to be vested, refused to accept the trust, and no trustee was in existence, competent in law to act in the premises, until within a short period, when the appointment of Howard was made by the court of chancery, as above stated. The bill then prays for an injunction to restrain Howard from further prosecuting the ejectment suit, that the defendants may be required to file the contract with their answer, if in their possession, or under their control, and be commanded to make the lease aforesaid to the complainant, on such terms [**5]  as the court may deem just and proper, and for general relief.

The injunction was issued, an interlocutory decree taken against the defendants, who appeared, but failed to answer, and an ex parte commission issued, under which certain exhibits were filed and proved, including a memorandum of the material parts of the contract referred to in the bill, taken by Benj. C. Barroll, Esq., who was also examined as a witness and testified that he knew the property in question, and had knowledge of the contract referred to in the bill, having read the same furnished to him by Charles Z. Lucas, solicitor for the defendants, and loaned to witness as the contract between the parties, and the memorandum above mentioned, is a copy made by witness from the original, of its material contents, omitting the description of the land, and that he returned the original to Lucas; that Carpenter took possession of the property under the contract, and still continues in possession; that witness was Carpenter's counsel after Mrs. Caton's death, and had several interviews with Pennington, who was then acting as agent and attorney for her heirs, in relation to this lease, in which Pennington told him he [**6]  was aware of the existence of Carpenter's contract, had seen it, and that it should be respected, he, however, said he could not then find it, that it came into his possession from James H. Stimpson, the agent of Mrs. Caton up to the period of her death; witness told Pennington that if he would receive the rent, Carpenter would pay it to him, but Pennington declined, saying he had prepared a deed creating himself trustee, which he was about to send over to England, to be executed by Lady Stafford and her sisters, and when that was done, it would be time enough to pay the rent and get the lease; that Pennington subsequently told witness that they refused to execute the deed to him, and his agency and attorneyship ceased; witness further stated to Pennington that Carpenter could not put up the house, or carry out his part of the agreement, in the then unsettled state of the title to the property, the contract being lost, and Carpenter having no copy of it, and it being uncertain whether the parties to whom the land might be distributed, would carry out Mrs. Caton's agreement; that after the refusal of the parties to execute the deed of trust to Pennington, Mr. Lucas became the solicitor [**7]  of Lady Stafford, and witness applied to him, and to Howard also, when the latter was made trustee, on Carpenter's behalf, to have the contract carried out, but both positively refused to do so, and brought the ejectment in the name of Howard. In demanding from Howard and Lucas the execution of the contract, witness expressly inquired of them both whether the lease would be executed if Carpenter would put up the house and pay the arrears of rent, with interest, and they explicitly responded in the negative. Witness never saw the original contract until shown him by Lucas, in whose custody it was, and to whom he returned it. Mrs. Caton died within about six months after the date and execution of the contract. If witness could have obtained from Pennington, or Lucas, or Howard, or any one representing Lady Stafford, any assurance that she would respect her mother's contract, or, indeed, if witness could have obtained the original contract, Carpenter could have disposed of his interest for a very considerable profit; several parties were anxious to buy his interest, and were willing to pay him a considerable advance, but the negotiations were frustrated by the circumstances to which witness [**8]  has referred, and, in consequence of this difficulty about the title, the property has remained idle for four or five years. Lady Stafford is a resident of England, acting in this country only through her agents.

Afterwards, upon affidavit of their solicitor, that their neglect to answer was caused by a misunderstanding between the solicitors on both sides, the answers of the defendants were permitted to be filed. The answer of Howard, which that of Lady Stafford refers to and adopts, denies that Carpenter entered into a written contract of lease with Mrs. Caton, as alleged in the bill, but admits that she had been in treaty with him for the leasing of the land, and did sign a paper which was intended to have been signed also by Carpenter, if the agreement had been consummated, but that it never was executed by Carpenter, and never was delivered to him, but was retained by her till her death; after her death, Carpenter having claimed the execution of this alleged agreement for a lease, his counsel, Mr. Barroll, applied to respondent's counsel, Mr. Lucas, to be allowed to see the paper, when it seems he took the very imperfect memorandum of it filed in the cause, but respondent [**9]  denies it was ever admitted to be, or shown to Mr. Barroll as, a completed and valid agreement between Mrs. Caton and Carpenter, and he herewith files the paper marked "Exhibit A." He admits the land is the property of Lady Stafford, and that the legal title is in respondent, as her trustee, but denies expressly that Mrs. Caton had, during her life, any right or authority to bind Lady Stafford, by any such contract as this paper is alleged to be, to execute a lease for the property, Mrs. Caton being but a cestui que trust for life of the same, with power to direct conveyances or leases only according to the terms prescribed in the will and codicils of her father, Charles Carroll of Carrollton. He admits that Carpenter has taken possession of the land, but insists that he is there without good title or lawful authority, and respondent has accordingly brought an ejectment to dispossess him. He further says, that if this paper was valid to bind Mrs. Caton, it is not valid to bind Carpenter, never having been executed by, or delivered to, him, and thus wants the mutuality of obligation which ought to constitute the consideration of it; that Carpenter has never acted under it, by the performance [**10]  of such acts as are therein stated, to be conditions precedent to his right to ask for a lease, and the time has long since elapsed within which such conditions were to be performed, and he denies that Pennington was at any time Lady Stafford's agent, with authority, by his acts or declarations, to bind her in relation to this property, or that he ever did or designed to do so.

It was admitted that, with other, the property in dispute was conveyed by Charles Carroll of Carrollton to Richard Caton, in fee, and by him afterwards mortgaged to Robert Oliver, and afterwards, by deed dated the 12th of January 1838, (reciting the death of Oliver, and appointment of his executors, and also the appointment of McTavish and Stewart, by the will of Charles Carroll, as trustee of Mrs. Caton, and also the power of Mrs. Caton to direct the sale of her property and the purchase of other,) the executors of Oliver, Richard Caton and Mrs. Caton, conveyed this property to said McTavish and Stewart, in trust, "to and for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust as aforesaid, for the use and benefit of said Mrs. Mary Caton, in and by the [**11]  said last will and testament of Charles Carroll of Carrollton, and the codicils thereto," the consideration of this deed being, that Mrs. Caton had sold other property and paid off the said mortgage; that McTavish and Stewart, in December 1844, conveyed it to Pennington and Hoffman, who had been appointed, by a decree in chancery, trustees in their place, upon the same trusts as they had held it. It was further admitted, that by the will of her said father, Mrs. Caton had power to direct, from time to time, during her life, any sales, conveyances, leases, transfers and assignments of the property, or any part thereof, bequeathed to trustees for her benefit. It was also admitted, that James H. Stimpson was authorized by Mrs. Caton, in her life time, by her power of attorney, duly executed and delivered, to make and enter into agreements for leases of the property of Mrs. Caton, subject to her ratification, and that the order herewith filed, marked A, directing the surrender of the property in question to Carpenter, was signed by Stimpson and delivered to Carpenter at the date thereof, who received immediate possession in pursuance of it. It was also admitted, that Mrs. Caton died in [**12]  or about October 1846.

The will of Charles Carroll contains three clauses devising property in trust for his daughter, Mrs. Caton, which are particularly referred to in this case, for the purpose of ascertaining the nature and extent of her authority or right to dispose of the property in dispute, and are as follows:

The first directs the property to be held during the lives of Mrs. Caton and her husband, and the life of the survivor of them, "upon the following trusts, that is to say, in trust for my daughter, Mary Caton, during her natural life, for her sole and separate use, free from the control or power of her present or any future husband, and to permit her, or any person she may authorize, to receive and take, during her life, the rents, profits and issues thereof, for her sole and separate use, and to make and execute, during her life, all such sales, conveyances, leases, transfers and assignments thereof, or any part thereof, as she, by writing under her hand, shall from time to time direct; and the proceeds of all such sales, conveyances, leases, transfers and assignments, from time to time to invest in such purchases of stock, funds, rents, or property of any kind,  [**13]  as she, by writing under her hand, may from time to time direct, to be held by them in their names, in trust for her sole and separate use, as aforesaid, during her life." And in case her husband, Richard Caton, should survive her, then the property, including re-investments, are directed to be held in trust for the use and benefit of the said Richard Caton, during his life, with powers like those previously given to Mrs. Caton. Then the will thus proceeds: "And from and after the death of the said Richard Caton and Mary Caton, I give, devise and bequeath all the said lots, houses, rents, slaves, plate and furniture, and also all property of every kind accruing from the sale, transfer, conveyance, lease, assignment and re-investments aforesaid, unto my grand-daughters, Mary Ann Patterson, Elizabeth Caton, Louisa Catharine Harvey, and Emily MacTavish, their heirs, executors and administrators, as tenants in common, equally to be divided between them."

The provisions contained in the second clause are: "In trust for my daughter, Mary Caton, her heirs and assigns, for her sole and separate use, free from the control and power of her present or any future husband, with power to my [**14]  said daughter, Mary Caton, to sell, give, convey, or otherwise dispose of the said lands, lots and houses, or any of them, or any part thereof, by deed or last will and testament, or in any other mode in which she may think proper, in the same manner as if she were a feme sole."

The third clause gives one-third of the residuum of the testator's estate in trust for Mrs. Caton, during her life, for her sole and separate use, free from the control or power of her husband, and to permit her, or any person she might authorize, to receive and take, during her life, the rents, profits, interest, income and dividends thereof, for her sole and separate use, with power for her to make sales, conveyances, leases, transfers and assignments, and the proceeds of the same to invest in like manner as provided for in the first clause. And upon the death of Mrs. Caton, the will gives "the said one-third of the general residuum aforesaid" unto the testator's four grand-daughters, named in the first clause, forever, as tenants in common.

The other admissions and facts in the case, including the defendant's Exhibit A, and the Order A, referred to in these admissions, are fully stated in the opinion [**15]  of this court.

Exceptions were filed by the defendants to so much of the testimony of Barroll as professes to state the conversations held by him with Pennington, Lucas, and Howard, and also to the "Order A," as evidence of any other contract or lease than that set out in the bill, or as evidence pertinent to the allegations in the bill and the contract there alleged and relied upon.

The court (KREBS, J.,) passed a decree making the injunction perpetual, and directing the defendant, Howard, to execute a lease to Carpenter, according to the terms of the contract. From this decree the defendants appealed.  

DISPOSITION:
Decree reversed, injunction dissolved, and bill dismissed.  

HEADNOTES:

An agreement between A and B, in which the former agrees to give the latter a lease, for ninety-nine years, of certain land for a stipulated rent, as soon as he shall comply with certain conditions manifestly prepared and intended to be executed by both, but signed by A alone, with the day of the month left blank, and never signed or attempted to be signed by B, and never delivered to him during A's life, is an inchoate instrument, passing to B no interest, either legal or equitable.

An order directing possession of land to be delivered to a party "to whom it has been leased for ninety-nine years," is not itself a lease, nor an agreement for a lease, for that term which equity can enforce, being defective, if for no other reason, in not showing what rent is to be paid

Possession of land taken in May, in pursuance of such an order, cannot be regarded as showing that the party's subsequent holding was under a contract made in the following July.

The fact that in a partition case, certain land held by the defendant and others as tenants in common, under a title not derived through that case, was allotted to the defendant and described as "in the tenancy of C, for the term of ninety-nine years," does not estop the defendant from relying upon defects in C's title, he not being a party to the case, and claiming under an instrument defective on its face as a lease for that term.

Such a description, though an admission that the property was in the tenancy of C, is not such an acquiescence in a contract for leasing it to him made by the ancestor from the land descended, as would amount to a ratification or confirmation by the parties to the partition case, of such contract.

To give to an admission the effect of ratifying or confirming a contract, it is necessary for the party relying upon such admission to show that the party making it, did so with full knowledge of all the facts affecting his rights.

An attorney, either at law or in fact, has no authority to make a lease or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property of his principal or client, unless authority for such purpose is expressly given.

Though a court of equity will, in many instances, aid a defective execution of a power, it will never interpose in the case of a non-execution of a power.

Courts of equity will grant relief as against remainder-men, to lessees claiming under a defective execution of a power to lease, made by life-tenants, in cases depending upon equitable circumstances.  

COUNSEL:
George W. Dobbin and Thomas S. Alexander, for the appellants, argued:

1st. That no contract for a lease or of a lease, is proved in the cause. The paper relied on by the appellee cannot operate as a present demise, because, being for estate over seven years, it was not executed and recorded according to the provisions of the acts of 1715, ch. 47, sec. 8, and 1766, ch. 14, sec. 2. Neither can it operate as an executory agreement. There was no delivery of this paper: it was never, and is not alleged ever [**16]  to have been, in Carpenter's possession. It was never executed by Carpenter; its date was left blank: it was kept in Mrs. Caton's possession till her death, and she never intended to be bound by it, till it was executed by Carpenter. Such an inchoate, incomplete, unexecuted contract, can have no validity whatever. Powell on Contracts, 287. 2 Peere Wms., 65, Ayliffe vs. Tracy. There were no acts of part performance of it. Carpenter went into possession of the property in pursuance of the order from Stimpson, two months anterior to the date of this alleged contract, and the possession was under this order, and not under this contract. There is no proof that Mrs. Caton knew that he had taken possession, nor of the particulars of the agreement between him and Stimpson. This order of Stimpson cannot be construed into a direction to the trustee to make the lease, nor as a lease, nor an agreement for a lease.

2nd. That conceding a contract for a lease to have been made, it was not perfected during the life of Mrs. Caton, and by the terms of the will of her father it would not be perfected after her death. The first and third clauses of this will give her but a life estate, with a power [**17]  to direct leases and sales, and the recitals of the deed creating her title to this particular property, show that it has reference to these clauses of the will. The second clause gives her a fee-simple, but there is nothing to connect this clause with the property in dispute. That such an agreement as this, attempted to be made by the life-tenant, cannot be enforced against the remainder-man, is clear from the authorities. 3 Merivale, 235, Blore vs. Sutton. 6 Madd., 207, Symons vs. Symons. 1 Sugden on Powers, 174. But again, by these clauses of the will, the power to direct leases does not attach to property purchased from the proceeds of sale of other property, but only to the original estate, and such a power cannot be raised by implication, (1 Platt on Leases, 394, 398,) and, by the admissions in this case, it may fairly be inferred, that the property in question was so purchased: if this is so there is an end of the case, for in that case the trustees must hold it for her own separate use, and she had no power whatever to lease it.

3rd. That the consideration binding Mrs. Caton to give a lease being the covenants on Carpenter's part, as they were never entered into by Carpenter,  [**18]  the contract never was complete. The contract to be enforced must be mutually binding, and both parties have the right to ask for its specific execution. 2 Jac. & Walk., 428, Martin vs. Mitchell. 1 Sch. & Lef., 20, Lawrenson vs. Butler. 14 Johns., 489, Clason vs. Bailey. 21 Penn. State Rep., 50, Bodine vs. Gladding. The evidence shows no excuse, whatever, for Carpenter's failure to perform his part of the alleged agreement. There is no evidence that the appellants prevented the erection of the house, or that Carpenter ever contemplated its erection. A cloud upon the title is no reason why he should not do it.

4th. That if the paper relied upon had been perfected by Carpenter's signature, and had been delivered to him, and if free from the objection, that Mrs. Caton had no power to make it in the form in which it is, still, as it contains no words of present demise, and is but "articles of agreement" by which she is to give a lease when the house is built, it would only be a contract for a lease and not a lease itself, and therefore vested no estate in Carpenter; and though equity will in some cases relieve against a forfeiture of a vested estate, it will never relieve against [**19]  a forfeiture, in order to vest an estate, and as Carpenter could by the terms of the paper claim no estate till he had performed the condition precedent, equity will not aid him. Act of 1766, ch. 14. Arch. Law of Land. & Tenant, 57, in 53 Law Lib., 76. 3 Taunt., 65, Morgan vs. Bissell. 3 G. & J. 281, City Bank vs. Smith. 3 Gill 269, Cross vs. Cohen. 5 Md. 531, Collins vs. Carman. 1 Vernon, 83, Popham vs. Bampfield. 2 Vernon, 339, Carey vs. Bertie. 1 Fonb. Eq., B. 1, ch. 6, sec. 5. Platt on Cov., 302, 303. 16 Ves., 402, Hill vs. Barclay, and same case in 18 Ves., 56. 10 Ves., 66, Wadman vs. Calcraft. 2 Merivale, 459, White vs. Warner. 10 Eng. Law & Eq. Rep., 134, Gregory vs. Wilson. 2 Price, 200, Bracebridge vs. Buckley. Ibid., 206, Rolfe vs. Harris. 2 Story's Eq., sec. 776. 12 Ves., 282, Sanders vs. Rope, (and note a.) 1 Sug. on Vend., 359, 360. 1 Ball & Beatt., 285, M'Alpine vs. Swift. 7 Md. 323, Mills vs. Matthews.

5th. That if, at any time, Carpenter could have invoked the aid of equity, to enforce the specific performance of his supposed agreement with Mrs. Caton, he has lost the right to do so, not only by his failure to make the erection provided for therein,  [**20]  but also by his delay in instituting proceedings to enforce it, the paper, which is supposed to evidence the agreement, being dated in July 1846, and the bill being filed in September 1852, and even then not as an original proceeding to compel performance of the agreement, but to obtain an injunction to restrain Lady Stafford, from recovering possession of the property by an ejectment. Thus leaving an interval of nearly six years, during which he has neither paid nor tendered his rent to any one authorised to receive it, nor erected, nor prepared to erect, the proposed building, nor bound himself, nor offered to bind himself in any manner to the observance of the supposed agreement. 2 Story's Eq., sec. 771, and cases there cited. 3 Johns., Cases, 60, Ballard vs. Walker. 1 Russell & Mylne, 506, Davis vs. Thomas.

F. K. Howard and S. T. Wallis, for the appellee, argued:

1st. That the contract between Carpenter and Mrs. Caton was not a mere executory agreement for a future lease, but created a subsisting term, and was in fact a lease in presenti. It was clearly defined in its terms, and partly executed by both parties; and the lease therein contemplated to be given at a future [**21]  day, was only a more perfect and formal assurance for Carpenter's benefit. It is recognised as a subsisting lease, in the proceedings under which Lady Stafford took her title to these premises. 4 Greenlf's Cruise, 58. Chitty on Cont., 313, 314, 315. 4 Kent, 105. Taylor's Land. & Ten., sec. 43. 12 East., 168, Poole vs. Bentley. 21 Eng. C. L. Rep., 318, Hancock vs. Caffryn. 33 Do., 317, Chapman vs. Bluck. 46 Do., 171, Curling vs. Mills. 10 Johns., 336, Jackson vs. Kisselbrack. 1 Md. 236, George's Creek Co., vs. Detmold.

2nd. That Mrs. Caton had full power to execute the instrument under which Carpenter claims title, whether it be regarded as a lease or only an agreement for a lease. By the deed of trust under which her title arose, she had all the powers in reference to this property, which she enjoyed in regard to any of the property given to her by her father's will, and as to the property thereby specifically devised to trustees for her benefit, she had the right of absolute disposition. Powers will be construed liberally to advance rights. 5 Md. 91, Pearce vs. Van Lear. It is contended, on the other side, that the power to Mrs. Caton to make leases, is limited to the [**22]  original property which she took in trust under the will of her father, and does not extend to such as was acquired by the proceeds of the original property that might be sold. But, in the first place, there is no evidence to show that this property was purchased by the proceeds of the original property; and, in the second place, the will makes no distinction between the property which he gave originally to the trustees to hold for Mrs. Caton, and that which might be purchased from the proceeds of the sale of such estate; the latter is to be held under the same trusts as the original property.

3rd. That supposing Mrs. Caton to have been merely a tenant for life, with power to lease the property in question, the instrument referred to was binding on the parties in remainder, even although it would be construed to be simply an agreement for a lease. This position is clearly sustained by the case of Shannon vs. Bradstreet, 1 Sch. & Lef., 52. See also 2 Ball & Beatt., 529, Lowe vs. Swift. 1 H. & McH., 163, Carroll vs Llewellin. 1 Sug. on Vend., 174. 1 Platt on Leases, 394.

4th. That the operative force of the instrument in question can be affected in only two ways, by the fact [**23]  that it was not signed by Carpenter, viz., 1st. As evidence that it was an inchoate, and intentionally incomplete contract. 2nd. As depriving it of the necessary mutuality supposing it to be a complete one. That it was not inchoate and incomplete, is proven by the fact that Carpenter was placed in possession with a view to it and under it, and that in the very proceedings which gave to Lady Stafford her title to this tract in severalty, it is specially described as subject to this identical lease to Carpenter. The absence of Carpenter's signature, is of no avail here on the subject of mutuality, the statute of frauds only requiring the signature of the party who is to be bound, and Carpenter having besides been placed in possession, and having rendered himself liable not only to proceedings to compel specific performance, but also to a suit at law upon the covenants and provisions of the instrument. 1 Platt on Leases, 570. 2 Do., 5, 6, 15. 42 Eng. C. L. Rep., 817, Cooch vs. Goodman. 12 Do., 327, Barnett vs. Lynch. Taylor's Land. & Ten., 665. Co. Litt., 231 a., 231 b. 3 Md. 68, Stewart vs. Redditt.

5th. That the engagement on the part of Carpenter, to build a house, was not [**24]  a condition precedent the performance of which was necessary to entitle him to a lease; nor was it in any point of view, such a condition as caused a forfeiture of his lease for its non-performance, such stipulation being merely a covenant. 8 Barn. & Cres., 308, Henniker vs. Watt. Longfield & Townshend, 232, Sharpe vs. Bergin. 5 G. & J. 253 to 256, Watchman & Bratt vs. Crook. Taylor's Land. & Ten., 643, 665.

6th. That even if the stipulation to build could be construed to be a condition precedent, the breach of which forfeited the lease, equity would relieve against such forfeiture; even if Carpenter had no other grounds on which to ask relief, than that the breach was not wilful and compensation in damages could be made, and that the condition was solely to secure a collateral engagement. But where the performance of the condition, as in this case, was prevented solely by the wrongful act, or neglect or default of the appellants, or without fault of the appellee, the right to relief is clear. And this doctrine is equally true, whether the instrument under which Carpenter claims be regarded as a lease or an agreement for a lease. 2 Story's Eq., secs. 771, 775, 776, 1315, 1316 [**25]  note 1323. Arch. Land. & Ten., 332. 2 Platt on Leases, 490. Willard's Eq., 534. 1 Smith's Lead. Cases, 95. 2 Greenleaf's Cruise, ch. 2, sec. 29. 2 Sch. & Lef., 682, Lemmon vs. Napper. 3 Ves., 690, Eaton vs. Lyon. 1 Ball. & Beatt., 286, M'Alpine vs. Swift. Beatty, 352, Firman vs. Lord Ormonde. 2 Price, 200, Bracebridge vs. Buckley. 3 G. & J. 265, 281, City Bank vs. Smith. 2 Johns., Ch. Rep., 535, Skinner vs. Dayton.

7th. That Carpenter was in no default whatever. Mrs. Caton died almost immediately after the execution of the lease. It remained in her possession, and Carpenter could not get possession of it, or obtain a copy of it. Pennington was not then one of the trustees in whom the legal title was vested. Carpenter's counsel called in his name on Pennington, offering to do all that his lease required. He could call on no one else. The property was undivided:--Lady Stafford in England. Pennington would not receive the rent, or give any guarantee on which Carpenter could proceed to perform his part of the agreement. He called on Howard when he became trustee and on Lucas, Howard's counsel. Both of them rejected his pretensions, and denied the validity of his lease. It is insisted,  [**26]  that the declarations of all these parties are competent evidence, not merely as declarations but as facts, and that Carpenter was justified by them in his course in the matter. It is further contended, that Lady Stafford is estopped from complaining of a course which was produced by the acts and declarations of parties who had a right to represent her, and that she is especially estopped from denying that Carpenter is a lessee under the agreement in question, he being described as such in the very proceedings under which she claims, and she having taken the property subject, in terms, to his lease, and valued accordingly.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*273]  ECCLESTON, J., delivered the opinion of this court.
The will of Charles Carroll of Carrollton, contains three clauses, devising property in trust for his daughter Mrs. Caton; to which clauses particular reference has been made, in argument, for the purpose of ascertaining the nature and extent of her authority or right to dispose of, or to lease the property in dispute. The deed creating her title, conveyed the property to the trustees therein named,  [**27]  "in trust for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust for the use and benefit of Mrs. Caton," by her father's will.
The appellants contend, that in view of the recitals in the deed, in connection with the provisions contained in the first and third clauses of the will referred to, the deed must be regarded 

 [*274]  as having reference to them; and therefore Mrs. Caton had only a life estate, with a power to lease or sell.
The appellee insists, that the deed should be construed as being governed by the second clause of the will, which, instead of simply giving her a power to dispose of the property devised, conferred upon her the unlimited and absolute right of disposition.
Our view of the case renders it unnecessary to decide which is the proper construction of the deed.
The defendants' exhibit A, is the instrument on which the complainant chiefly relies in support of his bill, and is as follows:
"Maryland, St:--Articles of agreement, entered into this     day of July 1846, between Mary Caton of the city of Baltimore, on the one part, and W. H. Carpenter of Baltimore county, on the [**28]  other part; witnesseth, that for and in consideration of the covenants herein stipulated, on the part of W. H. Carpenter, the said Mary Caton doth engage to grant a lease to the said W. H. Carpenter, for a period hereafter stated, for all that part or parcel of land," &c. And after describing the premises, the instrument thus proceeds: "and the said Mary Caton, engages to give a lease for the foregoing premises, as soon as a house shall be built, of the value of the annual rent and all other conditions be complied with, for the term of ninety-nine years. And the said W. H. Carpenter, engages to pay to the said Mary Caton for the first year, one dollar and five cents per acre, annually, from the first day of January 1847, in half yearly payments, as a rent for the said premises, clear of all deductions for taxes, levies, contributions or otherwise, for the next nineteen years, from the 1st January 1848, two dollars and ten cents per acre, per year, in semi-annual payments as aforesaid, clear of all deductions as aforesaid, and thereafter two dollars and fifty cents, per acre, per year, with the privilege of buying out at $ 41.66, forty-one dollars and sixty-six cents per acre. That [**29]  he will within three years build a house on the premises of stone, or brick, or wood, worth an annual rent equal to the rent of the premises. For the full performance of each and every article of the above 

 [*275]  contract, the said Mary Caton and the said W. H. Carpenter, bind themselves, their heirs, executors, administrators and assigns, by these presents. In witness whereof, the parties have hereunto set their hands and seals respectively, this     day of July 1846.
MARY X CATON, her mark.   (Seal.)
(Seal.)

Signed, sealed and delivered in the presence of, the same having been first read to Mrs.
Caton.--M. C. Jackson."
We need not inquire whether this instrument, according to the English decisions, should be construed to be a lease, or an agreement for a lease; for if, irrespective of our registration laws, its language would make it a lease, then being for more than seven years, and not having been acknowledged and recorded, as required by those laws, it could pass no title at law. And if, under its very defective execution, it could have any effect in a proceeding in equity like the present, it could only be the effect which should be given to an agreement [**30]  for a lease.
In Anderson vs. Critcher, 11 G. & J. 450, the appellee sued the appellant in an action of covenant to recover rent, under a contract signed and sealed by both parties, dated the 24th of April 1833, in which it is said, Critcher "binds himself, his heirs, &c., to give a lease for ten years," &c. The contract provides, "that the house which the said Donohoo and Anderson may put up for their own convenience, they can take down and carry off at any time, but they must give said Critcher or his assigns, notice of the intention to give up the property on or before the month of June, (otherwise it will be theirs for another year.) The said Donohoo and Anderson, bind themselves, their heirs, &c., to pay to the said Critcher, one hundred and fifty dollars, for the rent of one thousand eight hundred and thirty-four, and two hundred dollars per year after, the rent to be paid (or carry interest) after the expiration of the fishing season." The court did not deem it necessary to determine, whether the agreement was a lease or a mere agreement for a lease. They however concurred 

 [*276]  with the appellant, in construing the instrument of writing on which the [**31]  action was founded, to be for the term of ten years, determinable within the term, at the will of the appellant, upon his giving notice to the appellee, on or before the month of June, otherwise the term would continue for another year, And considering the property to lie in Maryland, the court say: "the agreement not being acknowledged and recorded, agreeably to the registration laws of the State, it passed at law no title whatever in the demised premises to the appellant, and consequently the covenant for the payment of rent which is dependent on the appellant's title, or interest in the demised premises created by the agreement, is wholly inoperative and void; and no such action of covenant can be maintained thereon, whether regarded as a lease or a covenant for a lease. If the appellant has, under color of this agreement, occupied the property intended to be demised, the appellee's remedy for the rent is not in covenant; but if the occupation be without his assent, it is trespass quare clausum fregit; if with consent, an action for use and occupation, or an assumpsit upon an agreement, from year to year of similar import with that ineffectually executed, and which the [**32]  law implies as existing between the parties." See also Peter vs. Schley, 3 H. & J. 211. Mayhew vs. Hardesty, 8 Md. 479.
Whether the deed to the trustees, for the use and benefit of Mrs. Caton, is to be regarded as having reference to the second clause of her father's will, or to the first and third clauses; and consequently, whether she had a life estate with a power to lease, or had the "right of absolute disposition" of the property, in our opinion the appellee is not entitled to the relief he seeks.
We think the alleged contract was an inchoate instrument, which never passed any interest or title, legal or equitable to Carpenter. It was manifestly prepared for the purpose of being executed by both parties. Mrs. Caton, alone, signed it, leaving the day of the month blank; the presumption from which may justly arise, that the blank was to be filled up when the paper should be executed by Carpenter. There is no proof, whatever, that he ever called for the purpose of signing 

 [*277]  the paper, or that he made the slightest effort to sign it. There is an entire absence of any evidence, that the instrument was, during Mrs. Caton's life, ever [**33]  delivered to Carpenter or to any one for him; or that she did any act justifying even an inference, that she intended it should be delivered, or considered as a binding contract, (unless her simple signature can be construed as evidence of such an intention,) whilst the paper was still remaining in her own possession. And we do not suppose that such an effect can be ascribed to the mere signature. The proof does not show, satisfactorily, that the instrument ever left the possession of Mrs. Caton during her life. Admitting it was received by Mr. Pennington from J. H. Stimpson, it does not appear when it was so received, or when Stimpson became possessed of it. The parties admit, that Stimpson was authorised by Mrs. Caton, by her power of attorney, to make and enter into agreements for leases of her property, subject to her ratification. If, therefore, it should be supposed, that after Mrs. Caton had signed the contract it went into the hands of Stimpson during her life, the reasonable presumption is, he had it as her agent, for the purpose of its being signed by Carpenter, and not for the purpose of making it a valid contract without his signature.
The appellee relies upon his possession [**34]  of the property as a circumstance in support of his alleged contract with Mrs. Caton. On this point his witness, Mr. Barroll, says, "Mr. Carpenter, the complainant, took possession under the contract, and still continues in possession." This, no doubt, was according to Mr. Barroll's understanding of the matter. But it will be seen from the admission of the parties, and the papers filed in the cause, that the appellee took possession on the 21st of May 1846, in pursuance of an order from J. H. Stimpson; whilst the contract signed by Mrs. Caton, is dated     July 1846. The admission alluded to is:
"It is further admitted, that the order herewith filed (marked 'A.,') directing the surrender of the property in question to William H. Carpenter, was signed by said Stimpson, and delivered to said William H. Carpenter at the date thereof, who received immediate possession in pursuance of it."

 [*278]  The following is the order "A.," referred to: "Messrs. Herbert and Smith, will please surrender the part of lot No. 116, containing 90 3/4 acres, to Mr. W. H. Carpenter, to whom it has been leased for 99 years, and oblige yours,
MARY CATON.
May 21st 1846.
Per, James H. Stimpson.  [**35]  "
This order itself, is not a lease for ninety-nine years, nor is it an agreement for a lease for that term, such as a court of equity would enforce against the appellants by a decree for specific performance. If for no other reason, it is defective in not showing what rent was to be paid. Nevertheless the admission is, that in pursuance of it, Carpenter took possession immediately after its date. And surely the possession so taken in May, cannot, with propriety, be regarded as showing that his subsequent holding was under the contract of July, with the authority of Mrs. Caton, or as evidence that she intended that contract should be binding between the parties, without Carpenter's signature, when the form of the instrument showed it was prepared for both to sign, and in the absence of proof of its delivery, or of any intention to deliver it, in its inchoate state; and when by its terms the rent was not to commence until the 1st of January following; before which time she died. It is also proper here to remark, the language of the instrument cannot be considered as indicating a design that the tenancy, supposed to be created by it, should begin at an earlier date than [**36]  when the rent was to commence.
The record contains an admission, "that some time after the death of Mrs. Mary Caton, certain of the property which descended to her daughters as tenants in common, was assessed and described and divided, in and upon certain schedules and plats filed in the court of chancery, in a cause wherein the Marchioness of Wellesly and others, were complainants, and Emily McTavish and others, were defendants, and that certain portions of said property, were by a decree of said court passed at June term 1851, in said cause, vested in John E. Howard, as trustee of said Lady Stafford, one of the daughters of said Mary Caton, and that among the property so described, the property now in question is described in schedule 

 [*279]  B. B., as 'in the tenancy of said William H. Carpenter, for the term of ninety-nine years, at an average rent of two hundred and nineteen dollars and eighty-three cents, yearly, and payable in the months of January and July.' And it is also admitted, that said property so described, is a portion of that which was allotted to John E. Howard, as trustee aforesaid, by the aforesaid decree, and that said Lady Stafford was a party to said proceedings.  [**37]  "
In view of these admissions, it is contended, that Lady Stafford, is estopped from denying that Carpenter is lessee under the agreement in question, he being described as such in the proceedings under which she claims. But those proceedings only assigned to her, in severalty, by partition, property previously held by her in common with others, under a title not derived through the partition case. And such a description of the property in such a case, the appellee not being a party to the same, we do not think can estop Lady Stafford from relying upon defects in the title of the appellee, as a tenant for ninety-nine years, when it is perfectly manifest from his bill and evidence, that the foundation of the title claimed by him, is based upon an instrument, which appears upon its face to be defective as a lease for the term he claims. In regard to the principles regulating estoppels, see Alexander vs. Walter, et al., Lessee, 8 Gill 239. Isaac vs. Williams, 3 Gill 278.
Although the description of the property in the partition case, was an admission by the parties that it was in the tenancy of Carpenter, still that admission was not such an [**38]  acquiescence in the contract of July 1846, as would amount to a ratification or confirmation of it. To give it such an effect, it was necessary that those making the admission should have had full knowledge of all the facts affecting their rights.
In Gray vs. Murray, 3 Johns. Ch. Rep. 188, Chancellor Kent says, "it is a well established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be fully apprized of his rights."
In Flagg vs. Mann, et al., 2 Sumner 486, Judge Story says: "The doctrine stated at the bar is well founded, that, in 

 [*280]  order to make such an acquiescence binding on Flagg, it should be proved, that he had full knowledge of all the facts affecting his legal and equitable rights; and that, with such knowledge, he did some open unequivocal act, confirmatory of or recognizing the validity of Fuller's title; or that by his silence the latter was purposely and injuriously misled into the belief, that his title was valid, and that Flagg did not mean to controvert it." See also Owings vs. Hull, 9 Peters' S. C. Rep., 629.
In Bennett vs. Colley, 2 Mylne & Keene [**39]  225, (7 Eng. Ch. R. 347,) the Lord Chancellor says, "it can never be maintained, that the acquiescence of a party, under ignorance of his rights, operates as a waiver of any claim, or as a confirmation of any thing done against him. Neither can it be seriously contended, that the proof of ignorance, or want of notice, lies on the party against whom such acquiescence is alleged."
In Shannon vs. Bradstreet, 1 Schoales & Lefroy 52, 73, the Lord Chancellor mentions the fact, that the remainder-man had knowledge of the agreement under which the tenant held the premises; and that he also knew the money had been laid out in improvements.
According to Bennett vs. Colley, proof of ignorance, or want of full knowledge of the facts connected with the contract of July 1846, does not lie upon Lady Stafford. And it may very correctly be said, the circumstances disclosed do not warrant the conclusion, that she had such full knowledge of the nature of the paper dated     July 1846, and of the matters relating thereto, as will render the admission in the particular case, in regard to the tenancy of Carpenter, a confirmation of his title under the contract relied upon by him.  [**40]  The instrument was never put upon record. Lady Stafford lived in England, and so did two of her sisters. The bill states that the contract had been lost or mislaid by Mrs. Caton or her agents, and could not be found for a long period after her death.
According to the bill, it appears that "the trustees in whom the property was intended to be vested, refused to accept said 

 [*281]  trust, and that no trustee was in existence competent in law to act in the premises, until within a short period, when the appointment of the said John Eager Howard was made by the High Court of Chancery, as aforesaid." We understand Mr. Howard's appointment was by the decree of June term 1851, in the partition case.
The declarations and conduct of Mr. Pennington, in regard to the trusteeship, when considered in connection with what is said in the bill, in reference to the refusal of the trustees to accept, show that he did not consider himself as a trustee having authority to act in the premises. When requested to receive the rent, he declined, saying "that he had prepared a deed creating himself a trustee, which he was about to send over to England to be executed by Lady Stafford and her sisters, Mrs.  [**41]  Caton's daughters; that when that deed was executed, it would be time enough to pay the rent and get the lease." Subsequently he said: "They refused to execute the deed to him, and his agency and attorneyship ceased." Under those circumstances he should not be considered an existing and acting trustee in regard to the premises in question, so that his declarations should be binding upon Lady Stafford and her sisters. And conceding that for them Mr. Pennington was attorney, when, according to the evidence, he is said to have stated, "He was aware of the existence of Mr. Carpenter's contract, had seen it, and that it would be respected." And admitting that Mr. Lucas was solicitor for the defendants when he is said to have lent to Mr. Barroll the paper in dispute, "as the contract between the parties," still the proof in the cause, in reference to what Mr. Pennington said, and what was said or done by Mr. Lucas, cannot render, or assist in rendering valid and binding upon their clients, the paper of July 1846. An attorney, either at law or in fact, has no authority either to make a lease, or to ratify or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property [**42]  of his principal or client, unless authority for such purpose is expressly given. In relation to the powers of an attorney, see Doub vs. Barnes, 1 Md. Ch. 127, and same case in 4 Gill 1, 20. White vs. Davidson, 8 Md. 169.

 [*282]  The appellee has contended that, conceding Mrs. Caton had but a life-estate with a power, and that there has not been a complete execution of the power, still he insists he has a right to claim that the contract shall be carried into effect, notwithstanding it may be a defective execution of the power. If, however, Mrs. Caton's title to the property in question, under the deed, should be considered as a life-estate, with a power of leasing, we do not regard the circumstances as presenting a question either in relation to a complete or to a defective execution of a power; but in our view of the matter, the case should more appropriately be considered as one in which there has been a non-execution of a power.
In 4 Greenleaf's Cruise on Real Property, marginal page 229, title deed, ch. 18, sec. 25, it is said: "Although a court of equity will, in many instances, aid a  [**43]  defective execution of a power, yet it will never interpose in the case of a non-execution of a power; which always leaves it to the free will and election of the party to whom the power is given, either to execute it or not. For which reason equity will not say he shall execute it, or do that for him which he does not think fit to do for himself. And the intervention of death between a man's resolving to execute a power, and his actually executing it, is not of itself, even in cases where the act is of such a nature as a man is under an obligation to perform, a ground for the interposition of a court of equity in favor of the person intended to have been benefited by the doing thereof, although some steps be taken towards completing such intention."
Formerly, in England, an opinion prevailed, that unless the title of a lessee under a power was effectually made, by a complete and perfect execution of the power, the right of a remainder-man to possess the estate free from the lease, would take place of the right of the lessee, as superior to it. And that, in such a case, the lessee had no claim to any equitable interposition in his favor, but his title could only rest on the [**44]  legal execution of the power. 2 Sugd. on Pow., marg. page 144. 16 Law Lib. 80. But this doctrine has been modified, and courts of equity have granted relief to lessees against remainder-men, in cases depending upon equitable circumstances.

 [*283]  Shannon vs. Bradstreet has been much relied upon for sustaining the title of the appellee to relief in equity. That case, however, is essentially different from the present. There, Sir Samuel Bradstreet had a life-estate, with a power to lease. In 1790, he entered into a treaty with Shannon, the plaintiff, to demise to him the lands in question, and an agreement was made for a lease to the plaintiff for the term of thirty-one years, from the first of November 1790, at the yearly rent of £  7 per acre, for such number of acres as the lands should be found to contain, upon a survey thereof; the lease to contain the usual covenants between landlord and tenant, and also a covenant that the plaintiff should, within three years, lay out £  200 in buildings and permanent improvements. A draft of a lease, pursuant to this agreement, was prepared by the plaintiff and submitted to Sir Samuel, who made some few alterations therein,  [**45]  and returned it, with the following endorsement, in his own handwriting:
"I approve of this draft, until a survey can be had, so as to ascertain the rent. Mr. Shannon may execute a short memorandum to me, according to the terms of this draft, and may have immediate possession.
29th October 1790.
S. B."
A memorandum was accordingly prepared, (but whether by Sir Samuel, or by the plaintiff, did not appear,) it was signed by the plaintiff and delivered to Sir Samuel, who delivered a copy or abstract of it, in his own handwriting, to the plaintiff, the original remaining in the custody of Sir Samuel. The memorandum was consistent with the agreement already stated.
Immediately after the execution of the memorandum, the plaintiff entered into possession, and subsequently laid out more than £  200 in improvements. No leases were ever executed.
In May 1792, Sir Samuel died, leaving the defendant, Sir Simon Bradstreet, his eldest son, and entitled to an estate-tail in the lands in question. The defendant came of age in November 1792, up to which time the rent was paid to his mother and guardian, by the plaintiff, and afterwards it continued to 

 [*284]  be paid by the plaintiff [**46]  to the agents of the defendant, until November 1801, when a notice to quit was given, and in 1802 an ejectment was brought; after which Shannon filed his bill, and obtained an injunction.
For nine years after the remainder-man arrived at age, the rents were received by his agents, without his making any objection, during that time, to the tenant's right to the premises, although before and after his arrival at age, he had a knowledge of the agreement under which the tenant held the premises. And speaking (on page 73) of the money expended in improvements, the Lord Chancellor says, it would be absurd to suppose it was not laid out on the faith of the agreement. There seemed to be some doubt, or controversy, whether this money had been laid out till 1794; the Lord Chancellor, however, rather thought it was expended before. Entertaining this belief, he says: "But if not laid out till then, it was laid out in confidence of the defendant's acquiescence in the agreement, and, I think, rather strengthens the case of the plaintiff. It appears that the defendant knew the money was laid out; if he meant to avoid the agreement, he ought to have given the tenant immediate notice, and it strikes [**47]  me that his not doing so, might form a distinct ground of equity against Sir Simon Bradstreet."
In the present case, not one dollar of rent was paid to Mrs. Caton, nor has any rent been received by either of her daughters, or by any one for them, or for either of them. And it is certain that neither before nor since the decease of Mrs. Caton, has the appellee expended upon the premises in question any money, either in buildings or other improvements. We need look no further than the bill itself, for the correctness of this remark. The appellee there alleges his belief "that by law he cannot be made to pay, and ought not to pay, rent for the said land for a period when, by reason of the cloud upon his title, and the great uncertainty of his getting a title thereto, the land was idle, and wholly useless and unprofitable to him." And this uncertainty in regard to getting a title, is relied upon as an excuse for his not having erected the building on the premises, according to the terms of the contract.

 [*285]  In our opinion, the complainant is not entitled to the relief he asks; therefore the decree below will be reversed, the injunction dissolved, and the bill dismissed, with [**48]  costs to the appellants in both courts.
Decree reversed, injunction dissolved, and bill dismissed. 

24 of 47 DOCUMENTS 

MISSOURI JOHNSON vs. JANE BRANNAMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 495; 1857 Md. LEXIS 13 

JUNE, 1857, Decided 

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

The appellee, applied to the orphans court to have an infant, Mary Ann Brannaman, about three years old, her great-grandchild, bound to her as an apprentice. The mother testified that the child was illegitimate, and that when about six months old, she gave her to the appellant, in whose possession she now is, and who, at that time, kept and now keeps a house of ill-fame; and that she is willing the child should be bound to the appellee. It was also proved that the appellee is a woman of excellent character, and has means of taking care of the child, and giving her proper maintenance and schooling.

The court having decided to bind out the child, the appellant, to prevent this binding, and to enable her to retain possession of the child, tendered to the court a bond with surety in the penalty of $ 266.66 2/3, conditioned to provide for the due and comfortable maintenance, and sufficient and proper clothing, of the child, until she attains eighteen years of age. The court refused to receive this bond, and passed an order binding out the child to the appellee, and from this order the present appeal was taken by the appellant.  

DISPOSITION:
Appeal [**2]  dismissed.  

HEADNOTES:

An appeal will not lie from a decision of the orphans court, refusing to take a bond, tendered under the second section of the act of 1793, ch. 45, to prevent the binding out of an infant; the character of the party offering the bond, whether he be a suitable and proper person to perform the duties imposed by its condition, are matters left to the judgment and sound discretion of the orphans court.

The laws in relation to the care and custody of infants, were passed for their benefit, and not to promote the views of those who may seek to obtain possession of their persons.

The words of the act of 1793, ch. 45, that the orphans court shall not bind out the child, "if any relation or other person" shall give bond, "for the due and comfortable maintenance," and "for the reasonable schooling and education of the child," mean any person suitable for the performance of the duties, imposed by the condition of the bond.

In this case, the orphans court properly refused to receive the bond offered by the keeper of a house of ill-fame, in order that she might retain possession of a female child, against the application for her apprenticeship made by a relative of the child competent in character and means to maintain and educate her.  

COUNSEL:
R. C. Barry for the appellant.

The only power which the orphans court has to bind out an orphan, is conferred by the act of 1793, ch. 45, and the second section of this act provides; "that when any child shall be before the court for the purpose of being bound out as an apprentice, if any relation or other person will with good and sufficient security, enter into bond in the penalty of one hundred pounds, for the due and comfortable maintenance, and for the providing sufficient and proper clothing for such child till of age as aforesaid, and also for the reasonable schooling and education of such child, then the court shall not proceed to bind out such child as aforesaid." By the act of 1798, ch. 101, sub-ch. 15, sec. 20, it is declared, that the orphans court shall not under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by this act or some other law. The court in this case, by binding out the child exceeded its powers. The tender of a sufficient bond, under the act of 1793, deprived the court of jurisdiction. The character of the appellant does not alter the question, or enlarge the powers of the [**3]  court. Though a court of chancery in this State has power to deprive an improper person, even a parent, of the custody of an infant and commit it to proper custody, yet the orphans courts have no such authority. Theirs is a special jurisdiction, limited by the express grant of the laws creating them, and conferring jurisdiction. For these reasons it is insisted, that the order appealed from should be reversed.

Benjamin C. Presstman for the appellee.

I think that under the decision of this court, in the case of Lammott vs. Maulsby, 8 Md. Rep., 5, no appeal will lie to this court in this case. The principle there established is, "that where an inferior court exercises a special limited jurisdiction, conferred by statute, no appeal from its decisions in such cases lies to this court." The act of 1842, ch. 25, conferred upon the orphans court special limited jurisdiction, such as they did not previously possess, and by the second section an appeal is given to the county courts, in all cases arising under that act. By the present constitution of the State, an appeal will lie under that act, from the orphans court of Baltimore city, to the superior court of Baltimore city, which [**4]  is clothed with the same powers as the county courts in this regard.

The sufficiency of a bond is under the terms of the act of 1793, ch. 45, clearly left to the discretion of the orphans court. For what reasons the court refused to accept this bond, is not set forth in the record. The taking of the bond is confided to the discretion of the court, and very properly so. It was not intended, that in the exercise of this delicate responsibility, the court should assign all the reasons which operated on their minds. I think the language of the court, in the case of Lammott vs. Maulsby, establishes, that the construction of the act of 1842 gives authority to the orphans court, to hear and determine all matters of dispute between masters and apprentices. The court in this case had entertained jurisdiction to hear and determine the petition filed, and had taken testimony on the subject, before the bond was tendered. The tender of the bond, at best, was but a fact for the consideration of the court, after jurisdiction had attached.

But what is meant by a bond for the due maintenance, and the reasonable schooling and education of such child, will be better understood by looking at [**5]  the object of the statute, as declared in the preamble. It is "to guard against the liability of destitute children, becoming useless or depraved members of society." Something more then is required of the court, than to consider merely the pecuniary sufficiency of the obligors. I cannot believe the highest judicial authority of this State will adopt the conclusion contended for by the appellant, that it is a matter of no moment, whether the appellant who seeks to obtain possession of the child, is a woman of bad character or not, and that whether she keeps a house of ill-fame, and a place for open prostitution, will not impair her right to have the custody of this child. Such a doctrine would be a blot upon the escutcheon of the State, upon whom rests the sacred trust of guarding the morals of her children. Although I admit, that the orphans courts can exercise no implied powers, I think their action in this case, in refusing to take the bond, was justified by the manifest intention of the framers of the act of 1793, and that the bond was, in no fair and true sense, sufficient for the due maintenance and education of the child.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON [**6]  and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*499]  TUCK, J., delivered the opinion of this court.
A minor having been brought before the orphans court, for the purpose of being apprenticed, under the act of 1793, ch. 45, the appellant, who had possession of the child, appeared and offered to give bond for her due and comfortable maintenance, in pursuance of the last proviso of the second section of that act. Upon taking evidence and consideration of the case, the court refused this application, and bound the child to the appellee, from which order this appeal was entered.
It is supposed, that the words of the act of Assembly make it the imperative duty of the orphans courts to place such children under the care of any person who may offer the necessary bond, and that they can exercise no judgment in the matter; and this demand, it is said, must be gratified without reference to the character of the party. To this we cannot assent. It is to be observed, that the acts of Assembly, in relation to the care and custody of infants, were passed for their benefit, and not to promote the views of those who may seek to obtain possession of their persons; and this jurisdiction has been confided to [**7]  the sound discretion of the orphans courts. As was said in a case of guardianship, the orphans court may make an injudicious choice, but it is not probable that the Court of Appeals could make a better one, ( Compton vs. Compton, 2 Gill 241,) and the principle applies equally here.
The words of the act must be interpreted to mean, any person suitable for the performance of the duties imposed by the condition of the bond. The present record illustrates the correctness of this construction. It is shown that the appellant is a very improper person to take charge of a female infant. And yet, in a controversy between her and a relative of the child, competent in point of character and means, who, with the approbation of the mother, seeks to rescue her from the example of corrupt and vicious associations, we are told that the appellant, a stranger in blood, may, as matter of right, 

 [*500]  claim that she shall remain under this contaminating influence, to be brought up, most probably, in the courses of life which the appellant appears to have followed. This surely would be to defeat the ends for which this act was passed, which were to afford necessary instruction,  [**8]  and to prevent such persons from becoming useless and depraved members of society, and was justly discountenanced by the court below.
Appeal dismissed. 

25 of 47 DOCUMENTS 

JOSEPH KELLER vs. THE STATE.--SEBASTIAN LANHARDT vs. THE STATE.--JOHN ZWANGER vs. THE STATE.--GEORGE BECK vs. THE STATE--CONRAD HOFFMAN vs. THE STATE.--JACOB WOLEBER vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 525; 1857 Md. LEXIS 62 

DECEMBER, 1857, Decided 

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

In these cases, each of the appellants was indicted for a violation of the license laws. Each indictment contained eight counts, charging, in substance, that the traverser, on the 2nd of May 1856, unlawfully kept, in the city of Baltimore, an ordinary, or place for the sale of, exposed for sale, and sold, spirituous liquors, to wit, whiskey, brandy, gin, rum, and fermented liquors, to wit, wine, porter, ale, and lager beer, in quantities less than a pint, without first obtaining a license so to do, contrary to the form of the act of Assembly in such case made and provided, &c. The pleas were non cul., and the cases were submitted to the court, to be tried on the following admission of facts, signed by the State's Attorney and the attorney for the traversers:

"It is admitted that the parties indicted are the brewers of lager beer, and that they retail, in small quantities less than a pint, in lager beer saloons by them kept, the beer by them so manufactured, without license."

The court (STUMP, J.) found the parties guilty, and imposed a fine of twenty dollars upon each of them. From these judgments the traversers appealed.  [**2]  

The act of 1856, ch. 353, entitled, "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders," provides, by its 1st section, that it shall not be lawful for any person "other than the grower, maker or manufacturer of the specific articles which shall be therein exposed for sale, except such maker or manufacturer as hereinafter specified," to sell, or expose for sale, in any shop, &c., certain enumerated articles, including "spirituous or fermented liquors, in quantities not less than a pint," "without first obtaining a license, in the manner prescribed by this act," "provided, nevertheless, nothing here contained shall be construed to exempt the establishment of lager beer, or the vendors thereof." The 2nd section makes it the duty of the comptroller to prepare licenses answering to the provisions of this act. The 3rd section makes it the duty of any person desiring to sell or barter any of the articles enumerated in the first section, to take out a license therefor, for which he is to pay according to prescribed rates. The 4th section provides, that if any person "shall desire and purpose to set up and [**3]  keep an ordinary, tavern, or inn, or a victualing house, cook shop, or oyster house, or any other place, at or in which spirituous or fermented liquors, or lager beer, may be sold or bartered in quantities less than a pint, at any one time, it shall be the duty of such person or persons" to apply to the clerk of the county where he resides, or to the clerk of the court of common pleas, if he resides in the city of Baltimore, for a license, and the rate at which he is to pay therefor, is then prescribed. The 5th, 6th and 7th sections relate to the time when the licenses shall expire, and to unexpired and fractional licenses. The 8th section enacts, "That no applicant for a trader's license shall be permitted, under such license, to sell any spirituous or fermented liquors, unless he shall take out an ordinary license of twenty-five dollars; provided, however, that nothing herein contained shall be construed so as to allow them to sell in quantities less than a pint." 

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The title of the act of Assembly of 1856, ch. 353, is: "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders." HELD:

That a provision in this law requiring venders of lager beer, manufactured by themselves, to take out licenses, does not contravene the 17th section of the 3rd article of the Constitution, which provides that "every law shall embrace but one subject, and that shall be described in the title."

A State law, taxing, by way of a license, those who sell, in small quantities, lager beer manufactured by themselves within the State, is constitutional; it is a law which the State has the power to pass, in exercise of the right to regulate its internal police, and every thing that relates to the morals and health of the community.

The license law of 1856, ch. 353, and the previous one of 1827, ch. 117, and its supplements, are to be considered as in pari materia, and persons neglecting to obtain licenses, as prescribed by the act of 1856, are amenable to the penalties imposed by the previous acts.

Penal laws ought not to be so strictly construed as to defeat the obvious intent of the Legislature, and though they are not to be extended by construction, they should receive a rational construction.

If a statute enjoins an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the Legislature.  

COUNSEL:
John H. Ing and Chas. F. Mayer for the appellants:

1st. The appeals were properly taken. The case of State vs. Lancaster was the case of a judgment confessed, whilst these are cases of special [**4]  verdicts, which are to be treated as if they arose on demurrers, where, on appeal, the whole record is brought up for review. In case of a special verdict, there is no such thing as a motion in arrest of judgment. Stephen's Pl., 124. But even if it were a judgment upon an agreed case, an appeal will still lie. 16 Pet., 291, United States vs. Eliason. 10 How., 345, 346, Stimpson vs. Balto. & Susq. Rail Road Co. See also, on this point, 3 G. & J. 158, Hysinger vs. Baltzell. 4 G. & J. 407, Charlotte Hall School vs. Greenwell. 9 Gill 242, Cushwa vs. Cushwa.

2nd. The act of 1856, ch. 353, under which these prosecutions took place, imposes no penalty, and authorizes, at common law, on its words, no punishment. It is a mere revenue law, imposing no penalty, and making no appropriation of one if imposed, and, therefore, only entitles the State to an action of debt for a failure to take out the license. 2 Strange, 828, Rex vs. Malland. 2 Johns., 379, Jones vs. Estis. 9 Bac. Abr., 254. Plowden, 206. 1 Bl. Com., 56. Dwarris on Statutes, 695, 715, 737, 750.

3rd. Manufacturers of lager beer are not, by the act, under an obligation to obtain licenses to sell in quantities less [**5]  than a pint, especially as manufacturers of other kinds of beer are expressly exempted. To the manufacturers, as we insist, the act has no sort of application. Its 4th section is to be read in connection with the first, which expressly exempts the manufacturers of this beer from taking out licenses, and applies solely to those who sell lager beer, not being manufacturers thereof. It is said, this act must be construed in connection with the previous license laws, but even if this be so, those laws expressly exclude growers and manufacturers.

4th. The Legislature had, constitutionally, no right to tax manufacturers of lager beer with cost of licenses to authorize them to sell their manufactured products. Fines, duties or taxes may be imposed on persons or property, "with a political view, for the good government and benefit of the community," (Dec. of Rights, art. 13,) but this is not a tax of that character; it is not a police regulation to preserve the health and morals of the community, but a mere revenue act, imposing taxes for the purpose of paying the State debt, as indicated by its title. Such taxes must be imposed equally upon the property of each individual, according [**6]  to its actual worth. Dec. of Rights, art. 13 and art. 21. But the State has no right to tax in the mode provided for in this law. It may tax personal property, but that same property cannot afterwards be accumulatively taxed in the shape of a license, which is, in effect, a tax on the property itself. Imported manufactured articles may be taxed as all other property, either specifically or in the form of a license to sell, (12 Wheat., 419, Brown vs. The State of Maryland; 5 How., 592, License Cases;) but the domestic manufacturer, whose property is once taxed specifically, cannot afterwards be burthened with a second tax in the shape of a license.

5th. But this act is also unconstitutional, because its title is not descriptive, as required by the 17th section of the 3rd art. of the Constitution. 7 Md. 160, Davis vs. The State. Its title says it is "An act to raise additional revenue to pay the debts of the State, by increasing the rates of license to ordinary keepers and traders." This gives no warning of such a provision as that under which these parties were prosecuted and fined, and is, in this particular, a plain violation of the constitutional provision which says, that [**7]  "Every law shall embrace but one subject, and that shall be described in the title." By the previous laws on the subject, ordinary keepers and traders were required to take out licenses, but manufacturers of lager beer were not so required. By the title of this law, its subject is the increasing of the rates of license for those who, under previous laws, were required to have licenses, and any provision in it subjecting a new class of persons to its operation, comprehends a subject not described in the title, and more than one subject, and, therefore, renders the law, or at least that portion of it, void.

Milton Whitney, State's Attorney for Baltimore city, for the State:

1st. No appeal lies in these cases, and they must be dismissed. In Rawlings vs. The State, 1 Md. 127, this court, in speaking of the manuscript case of Lancaster vs. The State, decided at September term 1850, in which the appeal was dismissed, on the ground "that the case could only be brought to the court by writ of error," say: "The question raised in the court below was submitted without argument, upon an agreed statement of facts. There was no motion in arrest of judgment; we suppose the appeal was [**8]  dismissed for that reason." That is precisely this case. It was submitted to the court below upon an agreed statement of facts. There was no motion in arrest of judgment, which would have brought up the whole record. 4 G. & J. 416, Charlotte Hall School vs. Greenwell. 5 G. & J. 110, Sasscer vs. Walker. There was no assignment of errors in the court below, and there is no error appearing on the record. It is an appeal from the judgment of the court imposing a fine, without any assignment of errors, and without the judgment of the court below upon a motion in arrest of judgment. If this appeal lies, then an appeal can be taken in any and every case, without raising the points below upon which the party intends to rely on his appeal. No point of law appears, by the record, to have been made in the court below. The act of 1827, ch. 117, authorizes the court, upon conviction, to impose a fine, or imprison the party, and no appeal has ever been allowed where imprisonment could be imposed by the court as part of the punishment.

2nd. But assuming the appeal will lie, it is then insisted, upon the part of the State, that the court below had power to impose the penalty in this case,  [**9]  and that the judgment of the court was legal and proper. The act of 1856, ch. 353, clearly makes it the duty of parties desiring to sell lager beer, to take out a license for that purpose, and there can be no valid objection to the constitutionality of this law. But it is said, the act imposes no penalty for refusing to take out a license. In reply to this objection it may be said, first, that this act is to be construed in connection with that of 1827, ch. 117, and its supplements of 1832, ch. 273, and 1834, ch. 232, which do impose penalties, these laws being all in pari materia; and secondly, that it is a clear principle of law, that whenever a statute prohibits any matter of public grievance, or commands a matter of public convenience, without enacting any penalty for disobeying its prohibitions or commands, those who violate its provisions, may be prosecuted by indictment, and punished by fine. 5 New Hamp., 257, State vs. Fletcher. Wharton's Cr. Law, 39. 1 Russell on Crimes, 49, 50. 1 Barr. 224, Gearhart vs. Dixon. 6 Humph., 17, State vs. Maze. 9 Yerger, 353, Moore vs. The State. 2 Strobhart, 12, State vs. Thompson.  

JUDGES:
The cause was argued before LE GRAND, C. J., TUCK and BARTOL,  [**10]  J.  

OPINIONBY:
TUCK 

OPINION:

 [*531]  TUCK, J., delivered the opinion of this court.
These cases were argued and will be decided together, as they all depend on the same condition of facts and law. In view of their importance, as affecting the public interest, we have considered them upon the merits, and having concluded that the parties were properly indicted and convicted, it is immaterial to them whether we affirm or dismiss the appeals. The latter point we have not examined.
These appellants were indicted, each in eight several counts, for violating the license laws, from which they claim exemption, because they "are manufacturers of lager-beer, which they retail in small quantities less than a pint, in lager-beer saloons without license."
And, first, it is contended, that the title of the act of 1856, ch. 353, is not sufficiently descriptive within the seventeenth section of the third article of the constitution, which declares, that "every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title." In the case of Davis vs. The State, 7 Md. 151, a construction was placed on this clause of the constitution, which we think [**11]  maintains the validity of this act of Assembly, against the objection now under consideration. This law relates to licenses to ordinary keepers and traders, as the subject of legislation. The purpose is declared to be the raising of additional revenue, to pay the debts of the State by increasing the rates of license. The subject of the act would have been sufficiently indicated by the title, if this purpose had not been declared. The act does not dispose of the fund raised from these licenses, or in any manner treat of the revenue or debts of the State. It might, with as much reason, be said, that because a person violating the act may be punished by indictment, three subjects are embraced, to wit; revenue, licenses and crimes. The evils designed to be prevented by this clause of the constitution, 

 [*532]  are well stated in Davis vs. State, and we do not perceive that this act is multifarious in the sense of that instrument, or calculated to contravene its purposes.
It is also contended, that the act is unconstitutional, because it lays a tax, by way of license, on manufacturers of lager-beer, which, it is said, compels them to pay more than their fair proportion towards the [**12]  support of government; that it is a revenue measure, and not an exercise of legislative power, under the last clause of the 13th article of the bill of rights, "with a political view, and for the good government and benefit of the community." We might dispose of this objection by referring to the case of Burton, et al., vs. The State, 3 Gill 1, in which several questions were decided, and points ruled, upon the act of 1844, ch. 280, entitled "An act imposing duties on promissory notes, bills of exchange, specialties and other instruments of writing, to aid in paying the debts of the State," and which act, as to some of the instruments then before the court, was declared to be valid. The title plainly showed, as does the title of the act of 1856, that the proceeds of the duties imposed, were to be applied in payment of the public debt, yet it does not appear to have been urged by counsel, or to have occurred to the court, that the act was void, because persons who might use stamped paper would be contributing to the support of government, on a basis other than "his actual worth, in real or personal property;" and we think that, considering the large amount raised [**13]  by that source of revenue, and the opposition to the law in some sections of the State, the question would have been decided, if the court had thought that act violated the old bill of rights, which was the same as the present, as far as it relates to this question.
But the system of legislation to which this act belongs, may be vindicated upon the plainest grounds of public policy, acknowledged and acted upon in most, if not all, the States of the Union, to wit: the right to regulate their internal police, and every thing that relates to the morals and health of the community, besides having received the sanction of the highest tribunal known to our institutions. In the case of Brown vs. The State of Maryland, 12 Wheat. 419, it was decided, that 

 [*533]  a State Legislature could not require the importer of foreign articles to take out a license from the State before selling a bale or package so imported, because such legislation would be repugnant to two provisions of the constitution of the United States, that which declares, that "no State shall, without the consent of Congress, lay any imposts or duties, on imports or exports, except what may be absolutely [**14]  necessary for executing its inspection laws;" and that declaring, that Congress shall have power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;" but it was conceded, that this prohibition continues only so long as the article remains the property of the importer, in the original form or package in which it is imported, and that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it loses its distinctive character as an import, and becomes subject to the taxing power of the State, whether in the form of licenses to those who may deal in quantities less than the original package, or through sales by licensed auctioneers, or by regulations for the safety and health of its citizens. In the License cases, 5 Howard 504, Ch. J. Taney, refers to Brown vs. The State of Maryland, as "drawing the line between foreign commerce, which is subject to the regulation of Congress, and internal or domestic commerce, which belongs to the States, and over which Congress can exercise no control," and all the judges who heard the cases concurred [**15]  in affirming the validity of State laws, regulating the sale of ardent spirits, by requiring licenses to sell by retail. These were fully argued, and most of the judges delivered separate opinions, in view of the importance of the questions involved, and there was a difference among them on some of the points, but there was no dissent as to this power of the State. Ch. J. Taney says, "but although a State is bound to receive, and to permit the sale by the importer, of any article of merchandize which Congress authorises to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary and advisable to guard the health or morals of its citizens, although such law may discourage importation or diminish 

 [*534]  the profits of the importer, or lessen the revenue of the General Government. And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice or debauchery, I see nothing in the constitution of the United States, to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper." To [**16]  the same effect, see the opinions of Justices McLean, (588, 591, 592, 595;) Daniel, (617;) Woobury, (623, 626, 627;) Grier, (631.) The conclusion to be drawn from those cases is, that the liquors sold by the parties, plaintiffs in error, stood on no higher ground than domestic spirits, and that such spirits are subject to State authority as objects of taxation, or of license in restraint of their sale; and it follows, that if the liquors, for selling which the present traversers stand indicted, were merely sold by them, the validity of the act of 1856, could not be doubted.
But it is supposed that the appellants are protected, although the liquor sold is domestic, because they are manufacturers, and only retail beer of their own brewing. We are not now dealing with the power of the State, to tax, by license or otherwise, the manufacturers of this article; the question is, can they claim the right to trade or traffic in it, in small quantities, when all other persons are required to take out licenses for the purpose? It is very manifest that this position, if allowed, might defeat in a great degree the object of the license laws, so far as they are designed to protect [**17]  the morals of the community. For every distiller and brewer may become a retail dealer, or have a tippling saloon annexed to his establishment, and thus evade the license laws altogether; or the small vender may make brewing a part of his business, with the same injurious effect upon the policy of the State. If, as was held in Brown vs. The State of Maryland, the imported article is liable to be affected by a State license law, as soon as the original package is broken up for use or retail by the importer, (see opinion of Chief Justice Taney, 5 Howard 575,) we cannot perceive why a manufactured domestic article shall not be liable to the same laws, when placed in the market for retail, even granting that the manufacturer, as such, would be exempted from this species 

 [*535]  of tax. In the language of Ch. J. Taney, in 5 Howard 577, as applied to imports, we may say, that although a State may not have the power to prevent the manufacture of a deleterious article, "it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem advisable or necessary to guard the health or morals of its citizens." See also Bode vs. The State, 7 Gill 326. [**18]  It is also insisted, that the fourth section of the act of 1856, ch. 353, does not contain any prohibition against opening the places therein mentioned, but only makes it the duty of persons desiring to do so, to apply for a license in the manner prescribed, and does not impose any penalty for neglecting to obtain a license before selling in quantities less than a pint. To this the answer is, that the act of 1827, ch. 117, and its supplements, and the act of 1856, are to be considered as in pari materia, all of them relating to licenses; and that as the third section of the act of 1827, makes it unlawful "to open, set up, or keep any ordinary, tavern, or inn, &c., &c., or any place at or in which any spirituous or fermented liquor shall be sold or bartered, in quantities less than a pint, at any one time, without first obtaining a license;" and inasmuch as the last act does not alter the punishment imposed by the act of 1827 and its supplements, persons neglecting to obtain license as prescribed by the act of 1856, must be considered as amenable to the penalties then in force. It is quite plain, that the act of 1856, was passed with reference to previous legislation on the same [**19]  subject, and with those acts before the law makers, because, the last act is a literal copy of some portions of the act of 1827. It is true, that in those laws there is no mention of lager beer, and on this an argument was made at the bar, that the offence charged against the defendant, is not within the prohibitions of the act of 1827 and its supplements; but we do not concede the force of this argument. The design of the legislature was to impose on the venders of lager beer the same restraints as were applied to keepers of houses for the sale of other liquors named in the act; and when they are expressly included among those required to take out licenses, they can plainly perceive what the law demands, and should comply. If they 

 [*536]  do not, they are amenable to the penalties denounced against others, in whose predicament they choose to place themselves, by a manifest and wilful neglect of what the State authorities require, as necessary to the peace and order of society. "Even penal laws, which it is said should be strictly construed, ought not to be so strictly construed as to defeat the obvious intention of the legislature." American Fur Co., vs. United States, 2 Peters 358. [**20]  5 Wheaton 76. And, though they are not to be extended by construction, they should receive a rational interpretation.  House vs. House, 5 H. & J. 125. If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. Russell on Crimes, 49. Rex vs. Davis, Sayer's Rep., 163. Gearhart vs. Dixon, 1 Barr. 224. 4 Bl. Com., 122. Here the penalty is provided by previous laws, and the plain intent was, to place the keepers of lager beer establishments on the same footing with others, required to obtain licenses to sell in small quantities, and, as these acts are in pari materia, they are liable to like punishment under the original and supplementary laws of 1832, ch. 273; 1834, ch. 232.
Judgment affirmed. 

26 of 47 DOCUMENTS 

CHARLES L. PETTIGREW vs. ZENOS BARNUM and ANDREW MCLAUGHLIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 434; 1857 Md. LEXIS 54 

DECEMBER, 1857, Decided 

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

Trespass on the case brought by the appellant against the appellees, on the 15th of February 1854, to recover damages for certain articles alleged to have been stolen from the plaintiff's trunk, while in the room occupied by him as a guest in a hotel kept by the defendants in the city of Baltimore. Plea non cul.

1st Exception. The plaintiff read in evidence the deposition of Miss Mary Pettigrew, taken under a commission, to the effect that she was the sister of the plaintiff, and had travelled with him and his wife in Europe, during the summer of 1853 and on their return, while on their way from New York to Carolina, the party reached Baltimore on the 4th of November, and took rooms as guests at Barnum's hotel, to which their trunks were taken; that the trunks of the plaintiff and his wife contained jewelry and other articles, silver and wrought gold, and money; they were wedding presents of great value, and of costly workmanship; she remembers among them the following: A dozen large silver forks; a dozen large silver spoons; a dozen small silver spoons; a half-dozen silver knives; a dozen tea spoons; she thinks that was all [**2]  the silver, cannot say what was their value; there was a small gold watch chain, and chatelaine worth $ 72; a small Venitian gold chain, the value of which she does not know; a small Venitian pin, to which was attached a gondola and gondolier, wrought in gold, which she thinks was valued at $ 2; a very handsome stone cameo brooch surrounded with pearls, which had a bracelet attached, and cost $ 150; a diamond ring that cost $ 150; a gold bracelet ornamented with a gold sprigg, that cost $ 30; a very curious purse of gold, wrought, that cost $ 40; these are all she can now recollect. She further deposes, that the trunks were not robbed before they reached Barnum's hotel; that she left Baltimore at half past two or a quarter of three, on the afternoon of the 5th of November, for Washington, and the plaintiff and his wife remained at the hotel; witness went out of the rooms, (her own adjoining that of her brother and his wife,) at half-past twelve of that day, and returned at two o'clock, and at a quarter-past two was in her brother's room, and saw no one there, nor did she witness any thing unusual in the appearance of things; an Irish girl named Alice, waited on the rooms; that she [**3]  has since visited her brother and wife, and none of the articles above enumerated are in their possession.

The plaintiff then proved by the girl Alice, above named, that she was at the time and had been for several years a servant at Barnum's hotel, which is a common inn, kept by the defendants; that the plaintiff and his wife and Miss Pettigrew, occupied two adjoining rooms with a door between them; that on the morning of the occurrences which gave rise to this suit, witness told plaintiff's wife she had better lock her room door, to which Miss Pettigrew replied, she was not going out that morning, and that witness then said to her, she ought to close and lock the door between her room and her sister's; that Miss Pettigrew took an early dinner that day, and some short time afterwards Miss Pettigrew called witness to her room and showed her her trunk considerably tumbled, some of her clothes on the floor and some of her silver lying on her clothes, and asked her who had been in her trunk? to which witness replied, that was best known to herself, (Mrs. Pettigrew,) that her sister had shortly before been in her room; witness told Miss Pettigrew that she, witness, had not taken them;  [**4]  Miss Pettigrew said she did not accuse her of having stolen them, but asked who had done so? that witness found the hall door of Mr. and Mrs. Pettigrew's room locked, but the door leading to Miss Pettigrew's room from the other, was open and so was the hall door of Miss Pettigrew's room; that Mr. Pettigrew shortly afterwards came in and said he had the key of his door in his pocket, and witness replied you have locked one door and left two open; he then said he would call Mr. Barnum; this was between two and three o'clock.

The plaintiff then offered in evidence a bill of discovery, which he had filed in the case, and the answer of Barnum, one of the defendants thereto, to the effect that the plaintiff and his wife and sister, stopped as guests at his hotel, on the 4th of November, and that Nos. 181 and 182 were the rooms assigned them, which were near the ladies' drawing-room on the second floor, and fronting the inner court; that the rooms adjoined each other and communicated by a door between them; that Miss Pettigrew left on the afternoon of the 5th, and the plaintiff and his wife, on the afternoon of the 7th; that during their stay, the plaintiff invited respondent to his [**5]  room, and showed him his trunk; the trunk had not the appearance of having been broken open, nor was it broken open, but had the appearance of being opened by a false key, as represented to respondent by the plaintiff; the articles in the trunk had the appearance of having been disturbed or rumpled; upon inquiring of the plaintiff, whether or not his door was locked? he said the door from the hall into his room was locked, but that between his room and that of his sister had been left open; that respondent sent for a police officer to look at the trunk, stating to him that the plaintiff said his trunk had been robbed, and respondent requested the officer to investigate the case; this was sometime during the afternoon of Saturday, but the exact time he does not now remember; no search was made among the servants or inmates of the hotel, as respondent believed his servants to be honest, and would keep none about him but such as he was assured were entirely honest.

The plaintiff's counsel then offered to read in evidence the plaintiff's own deposition, taken under a commission, in which, in answer to the first interrogatory, he states his arrival with his wife and sister at the hotel,  [**6]  how long they stayed, describes the situation of the rooms to which their trunks were taken, and says they contained articles of jewelry and ornaments belonging to dress, and other articles of silver. The second interrogatory is: "State whether any of the trunks belonging to you were robbed during your stay at Barnum's hotel as a guest? If so, state what articles were taken from it or them, and their values so far as you can give them; also state at what time you discovered that the robbery had been committed, and what steps you then took? Also state whether any of the articles stolen have been recovered by you?" In answer to this he says: "My wife's trunk was robbed during my stay at Barnum's hotel, the following articles were stolen from the trunk, viz: one dozen large silver forks, marked in German text C. L. P., valued at $ 130; one dozen large silver spoons, marked as above; one dozen silver dessert spoons marked as above, valued at $ 45; one dozen silver tea spoons marked as above, valued at $ 25; a half dozen silver knives marked as above, valued at $ 16.25; one small gold watch, double case, short chain, hook key, oblong seal, valued at $ 72; one Venitian gold chain, valued [**7]  at $ 7; one Venitian gold pin, valued at $ 2; one cameo brooch, (to be worn as a pin or bracelet,) and surrounded by large pearls, valued at $ 150; one diamond, being a large one set round with seven or nine smaller ones, valued at $ 150; one gold bracelet valued at $ 30; one gold purse of Italian workmanship, valued at $ 40; the said purse contained in specie $ 6.50; one old fashioned gentleman's watch guard, chain and knob, valued at $ 35; one pair gold earrings, value unknown. I discovered the robbery had been committed about two o'clock, P. M. I went immediately to Mr. Zenos Barnum, who was in the gentlemen's ordinary, and informed him of what occurred. I have recovered none of the above mentioned articles stolen from me."

This whole deposition was objected to by the defendants, and ruled out by the court. The plaintiff's counsel then offered in evidence the second interrogatory and the answer thereto as above set forth, to which evidence the defendant objected, and the court (FRICK J.) refused to permit the same to be given in evidence, and to this refusal to admit in evidence this second interrogatory and the answer thereto, the plaintiff excepted.

2nd Exception. It [**8]  was then agreed that Graham, a police officer of long standing, was sent for by defendants, immediately on the occurrence of the alleged robbery, and directed to take all necessary steps for the detection of the thief, and that upon examining the trunk and looking into the circumstances attending the alleged robbery, he was of opinion (supposing a robbery to have taken place) it was the work of an experienced professional thief, and not of any servant of the hotel. The defendants then proved by one of their clerks in the office of their hotel, that there was in a conspicuous part of the office a secure iron safe for the safe keeping of money and valuables belonging to guests. They also offered in evidence a notice printed in large letters, to this effect.

"Gentlemen are requested to deposite their money and valuables in the iron safe at the office, and to bolt their doors on retiring to bed; coats, umbrellas and light articles, should be left at the ticket office where checks will be given for their safety. When leaving their rooms gentlemen are requested to lock their doors and leave the key at the office. It is hoped this arrangement will be strictly complied with, as the proprietors [**9]  will not hold themselves responsible for any losses that may occur, and it saves trouble when friends call if the key is in the office, that they may be reported as not being in their rooms."

It was proved, that a similar notice was placed on the inner side of the doors of the rooms in question, and of all the bed rooms in the house. Their clerk also proved, that it was his habit generally to give notice to guests, and universally, where he knew they had valuables in their trunks, to deposit them in the safe, but he does not recollect giving such notice to the plaintiff. Evidence was also given of the general good character and honesty of the servants of the hotel, and particularly of the servant Alice, the witness in this case; that watchmen were employed to keep guard at night, and that there were hall watches during the day; evidence was also given of the general excellence of the management and watching of the hotel, for the security of the property of guests in their rooms. It was also in evidence, that the servant, Alice, had a master-key by which she could enter the rooms in question, and that when on the morning of the alleged robbery, she told the plaintiff's wife she [**10]  ought to lock the door between her room and that of her sister, she at the same time called her attention to the printed notice on the door. The plaintiff then prayed the following instructions to the jury:

1st. That by the law as it stood on and before the 1st of January 1854, an innkeeper was responsible for all losses happening to the goods of his guests, while they remained within the inn, unless such losses were caused by some agency, over which human power had no control, or by the act of the public enemies, or by the conduct of the guest himself or his servant, or a companion whom he chose to take with him, and that the innkeeper could not throw off or limit this responsibility, which the law imposed upon him, by such a notice as that offered in evidence in this case. Therefore, if the jury believe that the defendants kept a common inn in the city of Baltimore, and that the plaintiff with his wife and sister, were received by them into said inn as guests, and that a trunk belonging to the plaintiff, which contained jewelry, ornaments of dress and other articles of value, the property of the plaintiff, was, at the same time received by the defendants into said inn, and that [**11]  during the plaintiff's continuance there as a guest, and while the said trunk remained there, it was wrongfully opened, and things of value, the property of the plaintiff taken from it, and that all these occurrences took place before the first day of January 1854, then they are instructed, that they ought to find a verdict for the plaintiff, for the amount which they shall believe to be the value of the articles so stolen, unless they shall further find affirmatively, that the loss aforesaid was the direct consequence of the fault or negligence of the plaintiff, or of some companion or companions of his.

2nd. The jury are further instructed, that if they shall believe the facts set forth in the foregoing instruction, with the exception of fault and negligence on the part of the plaintiff, or his companion or companions, unless they are satisfied the plaintiff read the notice given in evidence in this case or knew its contents, or that one of his companions read it or knew of its contents, the defendants cannot derive any benefit from said notice.

The defendants then asked the following instructions: 1st. If the jury find from the evidence, that the plaintiff, his wife and [**12]  sister, arrived together at the hotel of the defendants and occupied rooms Nos. 181 and 182, as stated in the evidence, and that the keys of said rooms were delivered to them, and their trunks placed therein at their request or with their consent, and also find that the articles, or some of them, to recover the value of which this suit is brought, were stolen from the trunk of the plaintiff while it was in said room so occupied by him, still the plaintiff is not entitled to recover, if the jury shall also find that the loss of said articles was the result of the negligence and want of care of the plaintiff, or his wife or sister.

2nd. If the jury shall find all the facts stated in the defendants' first prayer, except the negligence and want of care on the part of the plaintiff or his wife or sister, still the plaintiff is not entitled to recover, if the loss of the articles of value mentioned in the first prayer, was the result of no default, negligence or want of care, on the part of the defendants or their agents or servants.

The court granted the plaintiff's first and rejected his second prayer, and also granted the defendant's first and rejected their second prayer. To [**13]  the refusal of the court to grant his second prayer the plaintiff excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment reversed, and procedendo ordered.  

HEADNOTES:

In an action against an inn-keeper, to recover the value of articles stolen from the plaintiff's trunk whilst he was a guest at the inn, the contents of the trunk, if he has no other evidence thereof, may, upon the ground of necessity, be proved by the plaintiff's own oath.

The inn-keeper is liable without regard to actual fault or neglect on his part, but such liability is limited to what is considered baggage, and does not extend to every article the guest may choose to carry with him; the term baggage, does not embrace merchandize or other valuables, not designed for use or personal convenience, on the journey.

An innkeeper is not liable for silver knives, forks and spoons, carried by the guest in his trunk, but is liable for personal ornaments or jewelry, appropriate for a traveller's wardrobe.

Where an offer is made of testimony, taken under a commission, part of which is admissible and part not, the party objecting should, if it can be done, confine his objection to that which is inadmissible.

But if the matters are so blended as to be inseparable, for the purpose of distinct objections, the objector may accomplish his object, by asking an instruction as to the applicability of the evidence, and its effect on the case or any branch of it.

It is no cause for the reversal of a judgment, that the court below rejected a prayer, even though correct in itself, if by a previous instruction which was granted, the court had given the law of the case to the jury, as favorably as the appellant could have desired.

A prayer, the subject of which is covered by previous instructions, ought not to be granted, because such repetitions are calculated to embarrass the jury, and may mislead them.  

COUNSEL:
Wm. S. Bryan and Henry Winter Davis for the appellant, argued:

1st. That it was competent for him to prove by his own oath the extent of his loss. The testimony of Miss Pettigrew, showed that the trunks when brought to the hotel contained valuable articles, most of them being such as were suitable to a lady's dress, and that at the time she left the hotel the trunk had not been robbed. The testimony of the servant Alice showed, that shortly afterwards it was discovered that Mrs. Pettigrew's trunk had been wrongfully opened and some of its contents taken out. The answer of Barnum, to the bill of discovery, showed also the violation of the trunk, and that the appearances indicated that a false key had been used. Miss Pettigrew's testimony further shows, that the articles enumerated in her deposition, were not in the possession of the plaintiff subsequently. These facts put the case clearly within the exception to the general rule, respecting the competency of the evidence of parties to a suit. 1 Gilbert's [**14]  Ev., 245. 2 Rolle's Abr., 686. 2 Evan's Pothier, 308. 12 Viner's Abr., 24, sec. 34 and 26, sec. 5. 1 Greenleaf's Ev., sec. 348. 23 Eng. C. L. Rep., 335, Lancum vs. Lovell. 1 Greenleaf's Rep., 27, Herman vs. Drinkwater. 1 Yeates, 34, Sneider vs. Geiss. 3 Barr., 451, McGill vs. Rowland. 8 Watts & Sergt., 369, Whitesell vs. Crane. 11 Missouri, 230, Sparr vs. Wellman. 9 Humph., 385, Openheimer vs. Edney. 11 Humph., 419, Johnson vs. Stone. 16 Pet., 203, United States vs. Murphy.

2nd. The appellant's second prayer correctly announced the law. The responsibility of an inn-keeper, for the loss of goods belonging to his guests, is settled by the law, and does not depend in any degree upon the assent of the inn-keeper himself. A notice that he will not be responsible for losses, is merely a denial of his fixed legal liabilities, which can have no effect. Still less could such a notice avail in the case, where neither the guest nor any companion had read the notice or knew of its contents, and when the loss occurred without any default or negligence on their part. The notice could not avail the inn-keepers, on the idea of a contract between them and their guest, because there can be no contract,  [**15]  unless the terms are, at least, known to both parties. Moreover, this action is not founded on a contract express or implied, but it is ex delicto for a breach of a legal duty. 8 Coke, 32, Calye's Case. 1 Smith's Lead. Cases, 47. 37 Eng. Law & Eq. Rep., 176, Cashill vs. Wright. 22 Eng. C. L. Rep., 186, Kent vs. Shuckard. Notes to Coggs vs. Barnard, in Hare & Wallace's Ed. of Smith's Lead. Cases, 266, 274 to 280. 6 H. & J. 47, Towson vs. Havre-de-Grace Bank. 4 H. & J. 391, White vs. Wagner. 6 How., 344, 382, New Jersey Steam Nav. Co., vs. Merchants Bank.

I. Nevitt Steele for the appellees, argued:

1st. That the court did not err in refusing to permit the evidence offered in the first exception, to go to the jury. 1st. Because the plaintiff was not a competent witness in the cause. The appellees were not in fault, and by the English authorities, the rule which excludes a party from testifying in his own case, is relaxed only in odium spoliatoris. But he was at most, only competent to prove the contents of his trunk, while this second interrogatory and his answer thereto, are intended to, and do directly and positively prove the fact of the robbery and the circumstances [**16]  attending it. 2nd. Because the necessity for the introduction of the plaintiff's own testimony, upon which alone, according to the American authorities, its admissibility could be founded, did not exist in this case. Miss Pettigrew's evidence establishes the fact, that the contents of the trunk, with but one or two exceptions, were known to her, and can it be contended, that because of the failure of the memory of a competent witness, as to some of the articles, this makes a case of necessity, so as to allow the plaintiff to prove his own case? 3rd. Because if the plaintiff's own deposition was admissible at all under the circumstances, (which is denied,) it was only admissible after the fact of the robbery had been satisfactorily established by evidence aliunde, and the evidence of that fact, offered in this case, was not sufficient to justify the admission of the interrogatory and answer, which the plaintiff proposed to read to the jury. For these positions see 1 Greenleaf's Ev., sec. 348. 12 Metcalf, 44, Snow vs. The Eastern Rail Road Co. 11 Humph., 421, Johnson vs. Stone. 1 Greenleaf's Rep., 27, Herman vs. Drinkwater. 11 Missouri, 235, Sparr vs. Wellman. 12 Georgia Rep., 221, Dibble [**17]  vs. Brown, et al. 2 Car. & Payne, 610, Butler vs. Basing. 9 Eng. Law & Eq. Rep., 480, Great Northern Railway Co., vs. Shepherd.

2nd. That the court properly rejected the second prayer of the appellant. 1st. Because his first prayer gave him all the law he was entitled to, and in fact goes further than the second, and the granting, therefore, of this second prayer, would have been a matter of supererogation, and its refusal did the appellant no injury. 2nd. Because the notice referred to in this prayer, particularly after the attention of Miss Pettigrew had been called to it by the witness Alice, was evidence proper to go to the jury, upon the question expressly submitted to them by the first prayer of the appellant, and also by the first prayer of the appellees, as to whether the loss was the direct consequence of the fault and negligence of the plaintiff, or of some companion or companions of his. 3rd. Because the prayer says, the defendant can derive no benefit from the notice, which is equivalent to asking the court to reject the evidence, and the evidence being once in without objection, it was too late to make the objection afterwards. 8 Gill 120, Sparks vs. Dent. 5  [**18]  Gill 120, Dent vs. Hancock.  

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

OPINIONBY:
TUCK 

OPINION:

 [*443]  TUCK, J., delivered the opinion of this court.
The appellant sued the appellees to recover damages for the 

 [*444]  robbery of his wife's trunk, while a guest at their hotel. After having offered evidence tending to prove the robbery, the plaintiff proposed to show by his own testimony, taken under a commission, that the articles alleged to have been stolen were in the trunk, and the value of them. The entire deposition having been objected to, and rejected, he offered the second interrogatory propounded to himself, and the answer thereto, which were also objected to, and excluded, and to this last ruling the first exception was taken.
The question therefore is, how far, if at all, inn-keepers may be charged with such losses, upon the evidence of their guests? and when we consider the amount of travel in this country, the subject is of great interest to the community as well as proprietors of hotels. As the loss happened before the passage of the act of 1854, ch. 323, the case must be disposed of according to the law as it stood at that time.  [**19]  
The exception to the general law of evidence on which the appellant relies, was applied many years ago, in England, to the liability of carriers, and also in other actions, where the nature of the transaction did not admit of better evidence. It is said, however, that the rule which excludes a party from testifying in his own case, was relaxed in these instances, in odium spoliatoris, and that, as these appellees did not commit the wrong complained of, the case is not an exception to the rule. We are not satisfied that this is the only ground on which the admissibility of such proof depends. One of the earliest decisions was against a carrier, where it did not appear that he had converted the box to his own use; and in another, under the Statute of Winton, the inhabitants of the hundred were as guiltless of the robbery, with the consequences of which they were charged, as are the appellees here. As against a defendant who had himself committed the act, and possessed the means of showing the damage, by producing the articles, the strongest presumptions would arise, and in such a case the plaintiff's oath would be received with greater propriety, in odium spoliatoris. And [**20]  the same reason would apply in criminal prosecutions.  6 Md. 88. Broon's Maxims, 425.  116 Peters 203. But even then the admissibility of 

 [*445]  the proof in civil actions would depend on the nature of the case; for there are many torts which go unredressed, by defect of competent evidence, though the acts complained of are of the most grievous and oppressive character; for the reason, that as a general rule, actions ex delicto as well as those ex contractu, must be supported by the oaths of disinterested witnesses. Where these are not to be had justice often fails, and the wrong-doer succeeds, unless the case be excluded from the operation of general principles.
But the cases which appear to be the foundation of this doctrine, do not place it on the ground suggested in argument. Ch. Baron Gilbert, (Ev., 128, 129,) speaking of actions under the Statute of Winton, says: that the exception was introduced, because the remedy would be totally denied to the party, if he were not accepted as a witness, inasmuch as, "no person can be supposed present in such transactions to give their evidence." As showing early authority for this [**21]  exception, now for the first time applied in this court, and to place its introduction on what we consider the proper basis, we give at length two cases which we find referred to, and recognized in almost all the elementary works, and in most of the reported decisions, on this branch of the law.
In 12 Viner 24, pl., 34, it is said: "On a trial at Bodmyn, Coram Montague B., against a common carrier, a question arose about the things in a box; and he declared that this was one of those cases where the party himself might be a witness, propter necessitatem rei. For every one did not know what he put into his box." The case of Bennet vs. Hundred of Hertford, 2 Rolle 685, is thus rendered, in Norris' Peake, 223, note: "In an action against a hundred, brought by the master, being a carrier, for a robbery committed on his servant in the absence of the master, quere, whether the master, being the plaintiff in the action brought, may be a witness to prove that he delivered the moneys, of which his servant swears he was robbed, before his servant set out on his journey in which he was robbed? for this might be proved by any other, and no person is to be a witness [**22]  in his own cause, but for necessity; as if he himself had been robbed, although that 

 [*446]  he was plaintiff, yet he might be a good witness to prove himself to have been robbed, and of what sum or things, and also to prove that he gave notice to the next ville and levied hue and cry, for this is of necessity for default of other proof. But as to proving the delivery of the money to his servant before the robbery, and before he set out on his journey, this might be proved by any other as well as by him, although it was objected, that it is not safe nor usual for men to call witnesses, when they deliver money to carry on a journey, on account of the danger of discovery, and for this reason per curiam, against my opinion, it was ruled that he should be received as a witness." And in the same note, it is said, that a similar case occurred before Mr. Justice Chambre, (in 1802, M. S.,) where a mob having robbed the plaintiff's barge of corn, which was carried in it, that part of the case was proved by the servant, but he not knowing the quantity on board, and this case (in Rolle,) being cited, his lordship, on the authority of it, allowed the plaintiff to be examined to prove [**23]  that fact. Bullers N. P., at page 289, states as an exception to the general rule, that "a party interested will be admitted, where no other evidence is reasonably to be expected," and in Lancum vs. Lovell, 9 Bingh. 465, (23 Eng. C. L. Rep. 335,) it was held, by the fourteen judges, that the case before them, an action for toll claimed on a road, came expressly within this exception of Mr. Justice Buller, because the nature of the case was such, that no other proof could reasonably be expected than that offered. See also 1 Phillip's Ev., 59.
These cases show, that the admissibility of such proof is recognized in England as established law, and that this exception is founded upon necessity, and was allowed for the attainment of justice, in certain cases, in which it would fail if the ordinary rules were applied.
The same point has been frequently ruled in this country, where the question appears to have arisen oftener than in England, and with a single exception, as far as we are informed, the decisions have followed the English doctrine. The only case the other way is that of Snow vs. The Eastern Rail Road Co., 12 Metcalf 44. The cases referred [**24]  to by the appellant's 

 [*447]  counsel, indicate that inn-keepers, carriers, railroad and steam boat companies, and stage owners, have been deemed as coming within the exception, and that necessity has been considered as fully justifying a departure from the general rule. Greenleaf, (Vol. 1, sec. 348,) says: "Such evidence is admitted, not solely on the ground of the just odium entertained, both in equity and at law, against spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected; it not being usual even for the most prudent persons, in such cases, to exhibit the contents of their trunk to strangers, or to provide other evidence of their value." Ibid., sec. 349.  Clark vs. Spence, 10 Watts 335. United States vs. Murphy, 16 Peters 203.
This application of the law of evidence to inn-keepers, is quite compatible with, nay, in most cases necessary, to insure the performance of the duties assumed by the landlord. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy [**25]  and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all concerned. Hence, common carriers and inn-keepers, are made liable without regard to actual fault or neglect, because they can best guard against danger, and because, in case of loss, it would be difficult for the owner to adduce proof of embezzlement or other actual fault or neglect on the part of the defendant. Landlords can secure the attendance of faithful servants and guard their houses against thieves. "The rule is founded on the expediency of throwing the risk upon those who can best guard against it." Farwell vs. Boston & Worcester R. R. Co., 4 Metcalf 49. When a person opens an inn, he assumes a relation to the public which renders this mode of proof necessary to the protection of his guests. Whilst at large they may take measures to secure their baggage, but arrived at the hotel, the traveller has little agency in the means employed to that end. These depend on the regulations of the house, with which he has nothing to do. The baggage comes under the care of the establishment, and this custody is assumed as part 

 [*448]   [**26]  of the service to be rendered for the price to be paid. The proprietor stipulates for the honesty of his servants, and for the safety of baggage, except as against losses by means not necessary to mention in this case. And, because it is not tolerated that trunks shall be subjected to inspection, nor indeed supposed that landlords desire such exposure of private baggage; and because travellers are not expected in anticipation of probable loss, to have persons attending their movements, and noticing what they put in, and what they remove from their trunks, from time to time, the law, upon grounds of necessity and general convenience, allows a party to be his own witness. If this were not so, it would be a complete immunity to the inn-keepers; contrary to one of the conditions on which he and his guest are presumed to come together, viz., that his baggage shall be safe. For, we may as well declare, at once, that the guest shall be his own insurer, while at the inn, as to deny to him the only evidence which he can reasonably be expected to furnish in case of loss.
It may happen, as suggested in the argument, that mischief will result, by enabling dishonest persons to perpetrate frauds.  [**27]  This, however, may occur in any case where controversies are to be determined by oral testimony; for all suitors subject themselves to the risk and consequences of false swearing by the witnesses of their adversaries. It is true, that the interest which a party feels in the result, is a greater temptation to perjury than is presented to witnesses in general, but this consideration must yield to the necessity of the case, and the peculiar relations of persons in the predicament of these parties. The defendant, however, is allowed the benefit of the new character which the plaintiff assumes on taking the witness' stand. He may be cross-examined, impeached or rebutted, nd dealt with, in all respects, like other witnesses; and, in many cases, a searching examination of the party himself, as to his position, means and habits, will furnish the most certain test as to the probability, that the trunk contained the articles in respect to which the action may be brought.
The introduction of a party's oath, as we have seen, depends on the nature of the subject, and the necessity of the 

 [*449]  case. If he has disinterested witnesses to prove what the law would otherwise allow him to show [**28]  by his own oath, they should be produced. Hence, in this case, the position of the appellees' counsel, that Miss Pettigrew's deposition proved all that the plaintiff proposed to establish by his own, would be an answer to the offer of the plaintiff's oath, if they had proved the same facts. But, on examining her evidence, we find that she knows nothing of the circumstances, (having previously left the hotel.) All that she says, bearing on this point, is, "I do know that the trunks referred to, contained articles of value." Again, she says, "the trunks of plaintiff and his wife, contained jewelry and other articles." She nowhere states that the wife's trunk contained all these articles, or any specified portion of them. She knew nothing of the alleged robbery, and not knowing which of the trunks had been opened, she could not say that the one said to have been robbed contained the articles mentioned by her. The amount of her proof is, that her brother and his wife had these things in their trunks; and was of little effect in the cause, except to show that they had owned such articles, and the value of some of them. It is a case, then, where it does not appear, that the plaintiff [**29]  had other proof to which he might have resorted, as to the contents of this particular trunk.
A question sometimes arises, as to the extent to which a party will be allowed to testify; that is to say, what articles he may prove to have been in his trunk. As a general rule, a landlord is liable only for what is considered baggage, and not for every article that the guest may choose to carry with him. But what is the baggage of a traveller, depends so much on circumstances, such as his position, habits, taste and mode of living and travelling, that it is easier to say, in a given instance, whether an article is embraced, than to lay down a general rule that will apply to all cases. We do not think the term embraces merchandize or other valuables not designed for use, or personal convenience, on the journey. It is not within the implied contract of the landlord, that he will be responsible for all goods which may be brought to his house, merely because they happen to be in a trunk. If so, it is not easy to 

 [*450]  define to what extent the power of the guest may be abused, and advantage taken by him, as against the landlord. 10 Watts 335. 25 Wend., 459. [**30]  Story on Bailments, 499.  11 Humph., 419. 12 Ga. 224. 9 Wend., 115. 6 Hill, 589.
In the present case, we find that the trunk contained silver knives, forks and spoons. For them the appellees were not responsible. If a party may recover for these, why may he not for many dozens of the same articles, or for any description and amount of plate? This we take to be in accordance with the reason of the case, and is supported by authority. But, for personal ornaments, appropriate for a traveller's wardrobe, a landlord may be liable. And, inasmuch as the answer to the second interrogatory, contained evidence admissible under the pleadings, namely, proof of the jewelry, as part of the contents of the trunk, it should not have been altogether excluded.
It was contended, on the part of the appellees, that this answer also contained evidence of the robbery, and that the plaintiff being incompetent for that purpose, it should have been rejected for that reason. We are not prepared to say, that a guest cannot, in any case, prove the loss of his baggage, by his own oath. The general rule is, that he cannot; but instances may [**31]  occur, where the reception of such testimony would be necessary to the ends of justice, and also within the reason of the rule which governs this class of cases. For example, it is in proof in this record, that the chamber-maid had a master-key to the rooms under her care; and that there were notices in the rooms for lodgers to leave their keys at the office. What security would locking the door by the guest afford against the improper use of the master-key, or of the one left at the office? If the room be entered and robbed, in his absence, and no signs of violence appear, ought the guest to be required to produce other proof of a fact that it is quite manifest he cannot so establish? And yet it is plain, that under this hypothesis he might be injured by the very agents of the landlord, who, of course would not testify against themselves. The case supposed, would be within the reason assigned by Ch. Baron Gilbert, "that no person can be supposed present in such transactions to give their evidence." These remarks 

 [*451]  are made, not as applying to this action, but to avoid a conclusion hereafter. As we have said, the plaintiff had offered other evidence of the robbery, and his [**32]  own oath, if admissible under a different state of case, was not necessary for that purpose. And so also we may add, in reference to this deposition, as containing evidence of the value of the jewelry, if relied upon for that purpose, that the party's oath of the value, if received at all, can only be where the nature of the subject and the necessity of the case are within the reason of the exception. There appears to be some diversity among the cases, and as this record does not need any expression of opinion by us, there being other proof of the fact by the plaintiff's sister, we confine ourselves to admitting the answer to the second interrogatory, as evidence of the contents of the trunk.
There is, to be sure, difficulty, sometimes, in separating what is admissible from what the law rejects, so as to enable the party objecting to bring the precise point before the court, and this is more likely to occur in offering interrogatories and answers under a commission. Where, however, it can be done it should be, as in Calvert vs. Coxe, 1 Gill 95. If the matters are so blended as to be inseparable for the purpose of distinct objections, the party may accomplish his [**33]  object by asking an instruction as to the applicability of the evidence, and its effect on the case or any branch of it.  Pegg vs. Warford, 7 Md. 582. Carroll vs. Granite Manf. Company, 11 Md. 399.
Without expressing any opinion upon the law of the plaintiff's second prayer, we may remark, that if correct, its refusal furnishes no sufficient ground for reversing the judgment. His first prayer, granted by the court, had given the law to the jury, as favorably as he could have desired, deciding, among other points, that the landlord's liability was not limited by the notice; whether it was read or not, therefore, could make no difference. It has been frequently ruled, that a prayer, the subject of which is covered by previous instructions, ought not to be granted, because such repetitions are calculated to embarrass the jury and may mislead them.  Mutual Ins. Co., vs Cohen, 3 Gill 459. Stokes vs. Saltonstall, 13 Peters 181.
Judgment reversed, and procedendo ordered. 

27 of 47 DOCUMENTS 

NATHANIEL WILLIAMS and others vs. DANIEL B. BANKS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 198; 1857 Md. LEXIS 34 

DECEMBER, 1857, Decided 

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

The bill in this case was filed on the 1st of December 1853, by the appellants, in behalf of themselves and all other creditors of Hannah Kitty Chase, late of Baltimore city, deceased, who will come in and contribute to the expense of the suit, for the purpose of setting aside a deed of trust executed by the said Hannah to Nathaniel and Joseph B. Williams, on the 2nd of August 1844. The bill asks to have this deed declared fraudulent, null and void, as against her creditors, who were such at the time of its execution, as well as against all her subsequent creditors, because it was made by her with intent to hinder, delay and defraud her said creditors, and to shield her estate against liability for debts which she owed at the time of its execution, and others which she might thereafter contract.

The provisions and trusts of this deed, and the property conveyed by it, are fully stated in the opinion of Justice Eccleston, delivered in this case. Mrs. Chase, at the time of executing this deed, was over ninety years of age, but fully competent to execute it, and the debts which she then owed, and those which she afterwards contracted,  [**2]  were all, except a small amount, contracted by her on account of her grandson, William Chase Barney. The complainants, and the creditors who came in and were made parties to the proceedings, were all, with few exceptions and for small amounts, holders of her notes and obligations issued to her grandson, and used by him for the purpose of raising money.

The answers of the trustees and executors of Mrs. Chase, and the cestui que trusts under the deed, aver that the deed was executed by her under the suggestions and advice of judicious friends, for the honest purpose of securing, beyond the power of revocation, the disposition of her property already provided and settled by her will and codicils; that she was advanced in years, and exposed to the persuasions and influences of interested persons, and that her object was to protect herself and her property; that she retained a life estate in the property, and that the legal effect of the deed was to secure the title of the property, according to the uses of the deed, beyond her power to alter or recall it. They charge that the notes appearing to have been dated before the deed were ante-dated; that Mrs. Chase received no value for [**3]  any of them, and that this was known to the complainants when they received them; that all these notes were loaned to William Chase Barney without any valuable consideration, and were by him passed to the complainants when over-due, on usurious terms, and are null and void; that the notes were intended to secure usurious loans, and that all this was known to the complainants. They also plead and rely upon the statute of limitations of three years before the filing of the bill, as a bar to the claims set up in the bill.

The proof in the cause, on the part of the complainants, so far as the antecedent claims are concerned, is fully stated in the opinion of Justice Eccleston. The subsequent debts amounting to a very large sum, consisted mostly of promissory notes drawn by Mrs. Chase in favor of William Chase Barney, and endorsed. These notes bear date the 15th, 24th and 25th of January 1845, payable at various times from three months to four years, and were held by the complainant, Banks. The few other subsequent debts consist of several judgments against Mrs. Chase recovered subsequently to the date of the deed. The complainants proved the signature of Mrs. Chase to each of these [**4]  notes, and the endorsements of William C. Barney thereon, and also offered in evidence a paper written and signed by Mrs. Chase, on the 30th of December 1847, and attested by her daughter, Mrs. Barney, and her granddaughter, Mrs. Oldfield, in which she gives a list of some of the notes of the 24th and 25th of January 1845, with the dates at which they are payable, and says, that she gave these notes to her grandson, William Chase Barney, in January 1845, and that they are now held by Daniel B. Banks, "nearly matured, the last of them will fall due in next January. Mr. Banks is my largest and principal creditor, and as he has acted kind and generous towards me, I am anxious he should have as little trouble as possible in getting his claims." In the same paper she also expresses a wish that part of her property may be sold in order that her debts may be paid during her life, her estate settled and she be in possession of her income. They also offered in evidence the inventory of her personal estate and list of debts due her at her decease, in order to show that such personal estate, in the hands of her executors, was insufficient to pay her debts. Among the list of debts so offered in [**5]  evidence is the following:

"William Chase Barney appears, by his note, bearing date the 30th of July 1844, and payable in twelve months thereafter, for $ 4000, to be indebted to her, at that date, for that amount. How much he has become since indebted the undersigned (the executors) are not informed. Any claims on this party are deemed desperate. By a paper called a codicil, dated the 14th of August 1846, the deceased endeavors to release the said William from all claims she or her estate may have against him."

On the part of the defendants it was shown, that on the 28th of January 1845, Mrs. Chase conveyed all her estate, real, personal and mixed, to William A. Talbott, "in trust during the natural life of the said Hannah Kitty Chase, to collect and receive the rents, dividends, issues and profits, arising or accruing, or becoming due upon, from or by said estate; and the same rents, dividends, issues and profits when collected, to apply first to the payment of all debts now due and owing and becoming due by her, with a reasonable compensation to said William A. Talbott for the same, and after the payment of all said debts to apply said rents, dividends and profits to the [**6]  proper use of her, the said Hannah Kitty Chase, and as she may, in writing, direct, after such rents, issues, dividends and profits, so to be applied, shall have been collected and received by said trustee, and from and immediately after the death of the said Hannah Kitty Chase, then in trust, as to the whole of said estate and property above conveyed, for the uses, ends, intents and purposes set out and declared in the last will and testament of her, the said Hannah Kitty Chase, and the several codicils thereto, heretofore executed by her and specially referred to and mentioned in a deed of trust from said Hannah to Nathaniel and Joseph B. Williams, which deed bears date on the second day of August 1844, and is recorded," &c.; and that on the 14th of September 1844, Mrs. Chase conveyed certain ground-rents to John Morris to hold and receive the same until he should be paid a debt due by her to him of $ 2250, with interest from the 9th of August 1844.

Talbott, the trustee, proves this deed, that he accepted the trust, received a large sum under it, including the groundrents previously conveyed to Morris, after his debt had been paid, the most of which he had distributed to her [**7]  creditors under an equity proceeding in Baltimore county court. A list of creditors to whom he distributed is given, which, with the admissions and agreement of the parties in relation thereto, is sufficiently stated in the opinion of Justice Eccleston. The defendants then examined Mrs. Mary Barney, the daughter of Mrs. Chase and mother of William Chase Barney, Mrs. Catharine Chase Oldfield, the granddaughter of Mrs. Chase and sister of William Chase Barney, William A. Talbott and George W. Dobbin. The testimony of these witnesses may thus be stated:

1st. As to the execution of the deed of the 2nd of August 1844, the age and mental and physical condition of Mrs. Chase at that period, the motives for the deed and the extent of her property at that time:--Mrs. Barney says, that Mrs. Chase died on the 2nd of March 1848, and was about ninety-seven years old at the time of her death; that in August 1844, her mind was sound and she was very capable of transacting business, though her memory was weak; in July 1845 she had a severe illness and her health declined rapidly, and then she was not so firm as she had been, but became credulous, and you could persuade her to anything; that after [**8]  July 1845 her health was better at times and she occasionally went about and visited at the offices of her counsel; the year before her death she became unable to collect her rents personally and got witness to do it; that on the 2nd of August 1844 she owned ground-rents to at least $ 3000 or $ 4000 per annum, a life-estate in the house she lived in, "Newington," a tract of about eight acres, in fee; that she had owned a good deal of bank and other stocks, but had parted with them before that period, and had then very little personal property, only some little furniture which sold at her death for about $ 300. Mrs. Oldfield's testimony on this subject is substantially the same. Talbott proves that her mental and bodily health were, at that time, remarkably vigorous for one of her years; that he was absent when the deed was executed and has no personal knowledge thereof. Dobbin testified as to her competency and vigorous state of health, both of body and mind, at the time; that her motive in executing the deed was to keep her estate out of danger of being wasted by the influence exercised over her by her grandson, William Chase Barney; that it was prepared under his advice, he and Talbott [**9]  being her counsel; that the reservation of the life-estate proceeded from an indisposition on her part to dispossess herself of her entire estate and the control of the rents, issues and profits as long as she lived, but witness has no recollection of the particulars of the conference with her which led to the drawing and execution of the deed. Neither of these two last witnesses knows anything of the value of the life-estate reserved by the deed.

2nd. As to the influence possessed and exercised by William Chase Barney over his grandmother, Mrs. Chase, the extent and character of this influence, and the knowledge of it by Banks or other creditors:--Mrs. Barney says, that his grandmother educated the said William and took care of him; that he lived with her nearly a year until some time in 1844 or 1845, when he went to house-keeping; that in the opinion of his grandmother he was everything to her; he held the most unbounded influence over her, could persuade her at any time to part with her money, which no human being could do but himself, he resorted to every means to obtain her property, and could do anything with her; that his grandmother has often told witness that he did exert [**10]  an undue and improper influence over her, and said William has told witness he could do as he pleased with his grandmother; he has told witness he could give his grandmother a five-penny bit and get a hundred dollars from her; he has told witness he would show her he could get money from his grandmother, and he would then go into her room and come out with his hands full of money; that his grandmother was too weak to resist him, she would cry and tell witness she had parted with property to him and that she would not do it again; he was the only one who could get money from her, and when witness opposed it he would take her in a hack and carry her away to the bank and obtain it from her; he used his influence to get her money and then squandered what he got; he obtained from her nearly all her income and stocks, and when that was insufficient he got her to give notes to the amount of a thousand dollars perhaps; witness has seen and heard of notes to the amount of $ 10,000 which she had given him; witness here means the notes that were shown her in the court house, and of which she had no knowledge until they were thus shown her; that he did not own a dollar in the world, or any property,  [**11]  nor had he any occupation, except to raise the wind; he often boasted to witness that he spent $ 8000 a year; that when he would get from his grandmother a hundred or five hundred dollars he would slip into her hand five or ten dollars of her own money, and she would be delighted and say what a generous fellow he was, and consider it as if it were a gift to her; he never gave her anything of his own in consideration of what she gave him, and in fact he had nothing to give; that the means he used to obtain money from her were persuasion, the influence he had over her, the complete possession of her affections; that she used to cry bitterly after she had given him the money, and complain to witness.

Mrs. Oldfield says on this subject, that said William was an inmate of Mrs. Chase's family off and on just as he visited Baltimore; that Mrs. Chase was always very fond of him; she had educated him; he would coax her and she would do as he wished, and used to say that he employed animal magnetism with her; she was so angry sometimes that she would not speak to him, and he would go up and speak soothingly to her, and she would then show great kindness to him; he certainly used the influence [**12]  he had over her, and witness thinks it was an undue influence and she was too weak to resist him, if you call it an undue influence when persons say they won't do a thing and you coax them out of it; witness has seen him coax her out of her money in that manner, and has heard of notes being given which witness presumes were got in the same way; that Mrs. Chase had a piece of property called "Newington," which, in her will, she had given to her two grandsons, Samuel and the said William, and on the marriage of Samuel witness induced her grandmother to give him a deed of his half, and asked her at the same time to give one also to William for his half, but she resisted this until witness told her that William would give her some notes of hers that he held, amounting to two or three thousand dollars, when she consented, and the deeds were then drawn by William himself, and he read his own deed to his grandmother, witness holding that to Samuel, and both deeds read alike, except the names of the grantees, and each conveyed one-half of "Newington," and were executed in presence of witness, that to Samuel being executed first, and were acknowledged, but when William's deed went on record [**13]  it was for the whole tract of "Newington;" that he obtained many promissory notes from his grandmother, but witness cannot tell the amount; on one occasion he gave witness about $ 12,000 of such notes to take care of for him; witness has heard him say he had got $ 40,000 or $ 50,000 from her, besides spending her income; that he was, at one time, for a short period, an engineer, but even then he always got money from his grandmother, and while in Baltimore he had no money but what he got from her; witness does not recollect that he ever gave her any consideration for the money, notes or property he got from her, except that he once told witness he had given her his own notes for some money she had given him. On cross-examination this witness, in answer to the interrogatory: "Do you know of certain promissory notes issued by Mrs. Chase to the order of Wm. C. Barney, and which you and your mother, Mrs. Mary Barney, advised Daniel B. Banks to purchase, for the purpose of being the sole creditor of Mrs. Chase, and to keep the notes off the street?" said, that William C. Barney had some notes of Mrs. Chase for two or three thousand dollars; he put them in the market and could get very little [**14]  for them, as Mr. Talbott cried them down; he applied to Mr. Banks to take them, and Mr. Earhart called up to know if witness and her mother, (Mrs. Mary Barney,) approved of Mr. Banks taking them; a note was written by witness and signed by Mrs. Mary Barney and witness, saying that they would prefer Mr. Banks' taking them, as he, (Mr. Banks,) had other notes, and they would prefer there being but one creditor.

Talbott testified on this point, that William C. Barney had great control over his grandmother, who seemed to be very much afraid and at the same time very fond of him, but whether he exercised that influence to obtain notes from her, for his own purposes, witness does not know, it was never so exercised in the presence of witness; that he had acquired, and did exert, before the execution of this deed, and from thence to her death, an extraordinary influence over her understanding; it seemed partly fear and partly affection; witness would not say she was too weak to resist, because she resisted all other influences from others, but she did not resist his, and by means of it he certainly did obtain large amounts of money, property and promissory notes, the amounts of which [**15]  witness does not remember, but his recollection is that that it was very large; witness' knowledge is derived from Mrs. Chase and the said William, and partly from his own observation; witness frequently remonstrated with her, and invariably received an assurance, either that she had not done so in the particular instance, or that she would not do so again; that Banks, and witness presumes most, if not all, her creditors knew of this influence; it was matter of general notoriety and conversation among all parties who knew her; whether or not they, or any of them, knew of the want of considerations for the notes held by said William, witness cannot say; witness does not know of said William's getting possession of and selling her stock; he was then utterly insolvent, and had been so long before, and witness believes has been so ever since.

Dobbin testifies that said William had acquired, and did exert, about the time of the execution of this deed, before and afterwards, an undue influence over the will and understanding of Mrs. Chase, which she was too weak to resist, and did thereby obtain property, money and promissory notes from her, the exact amount of which witness does not [**16]  know, but thinks it exceeded $ 15,000, and went perhaps to $ 25,000; that witness has reason to believe, from the conversations he held with Mr. Banks in relation to the transactions between Barney and Mrs. Chase, that Banks did know the influence exercised by Barney over her in all the transactions to which they were parties; witness does not know whether Banks, or any of the other creditors, knew of the want of consideration, or of the nature of the consideration, of the particular notes enquired about, held by said Barney; witness knows that Barney got possession of and sold most of the stocks of Mrs. Chase, but what he did with the proceeds he does not know; witness believes that Barney was entirely insolvent ever since witness has known him, which was long before the date of the deed.

3rd. As to the mode of living, habits and expenses of Mrs. Chase:--Mrs. Barney says, she thinks her mother did not spend $ 200 a year, she kept but one servant and was remarkably parsimonious; Mrs. Oldfield, that the amount allowed by Mr. Talbott, and expended for the subsistence of Mrs. Chase, was $ 5 per week while witness lived there; she was of a very economical disposition and spent very [**17]  little, though witness thinks she had formerly spent more than that; Talbott, that at the time the deed was executed her habits and disposition were exceedingly saving and penurious; witness does not know the amount of the expenses of her household and personal subsistence, but from constantly seeing her at home and elsewhere, he judges they did not exceed $ 150 a year; that when witness acted as trustee, under the deed of the 28th of January 1845, there was no regular allowance to her, but the creditors gave witness permission to spend such sums as he thought necessary for her support; Dobbin, that her habits, as to her personal expenses, were of the most penurious character; witness does not know the amount expended by her, but should put it at the smallest sum capable of sustaining life.

4th. As to the knowledge of the several deeds referred to in the record, or either of them, by Banks or any of the creditors:--Mrs. Barney says, that Banks knew of the deed of the 2nd of August 1844, in August or September 1845; Mrs. Oldfield, that Banks knew of its existence but she cannot fix the date of his first knowledge; Dobbin, that he thinks Banks had knowledge of both deeds soon after [**18]  they were executed, but he does not think he had before; that Banks claimed as a creditor under the deed to Talbott, and received a dividend, but the amount witness does not know; he also say he does not think the defendants or any of them had any knowledge or notice of the August deed, at the time of its execution; Talbott, that he believes Banks had knowledge of both deeds soon after they were executed; that under the deed to witness Banks preferred a large majority in value of the whole claims preferred.

5th. Talbott further proved, that at the time the deed of trust was executed to witness, he could discover, after inquiry, but three notes of Mrs. Chase, amounting to about $ 1300 or $ 1500; some months afterwards other notes made their appearance, and from time to time they increased until the debts exhibited amounted to over $ 10,000, as appears from the auditor's statement in the equity case referred to, and as he expected to find but $ 1300 or $ 1500, the excess of course was beyond his calculation; witness suspected and said that these notes were ante-dated, but had of course no actual knowledge of the fact, he inferred it from the facts above mentioned; that whether these [**19]  notes so presented for distributive shares to witness were ante-dated or not, witness does not know of his own knowledge, and could only give his suspicions; witness cannot say for whom the debts so presented were contracted, but Mrs. Chase certainly had no use for such large sums of money, and it is just as certain she did not use them, and witness does not therefore believe they were contracted on her account; the notes, for the most part, were, as he now recollects, payable to the order of William C. Barney, and witness always thought they were obtained by him from Mrs. Chase without consideration; that he thinks Mrs. Chase denied at different times all the debts so exhibited to witness; that she alleged that her name had been signed to notes without her knowledge or consent, but to what extent or number he cannot now remember; that he frequently heard Mrs. Chase allege, that many notes had been forged, but as to these additional claims he has no specific recollection; witness would not have paid any of these notes without having the handwriting authenticated, because her signature was easily counterfeited, and she constantly alleged that it was so; had witness never heard any thing [**20]  he should have supposed the signatures genuine.

The other testimony in the case, in regard to the amount and value of Mr. Chase's property, is sufficiently stated in the opinion of Justice Eccleston.

Exceptions were then filed by the complainants, to various portions of the testimony on the part of the defendants, which need not be particularly stated as no decision was made upon them. The defendants also excepted to the testimony of Pitts, referred to in the opinion of this court, upon the ground of interest, and then filed various exceptions and objections to the various claims filed in the cause, the nature and purport of which latter exceptions, are sufficiently stated in the opinion of Justice Eccleston.

The court below, (KREBS, J.,) delivered an opinion, and passed a decree vacating and annulling the deed as fraudulent and void, as well against the subsequent as the antecedent creditors, and directing the property to be sold for the payment of their claims. From this decree the defendants appealed.  

DISPOSITION:
Cause remanded, under Act of 1832, chap. 302.  

HEADNOTES:

Where a voluntary deed or settlement, unaffected by fraud, in fact, at the time of its execution, is set aside at the suit of antecedent creditors, subsequent creditors cannot be let in to participate in the distribution of the fund; otherwise where there is fraud in fact.

The registration laws of this State were designed to give, and do give, notice which is binding upon all the world, and a person who, at the time of becoming a creditor, is aware of the existence of a deed, cannot, in any just sense, be considered as "disturbed, hindered, delayed or defrauded" by it.

Indebtment, at the time of a voluntary deed, is prima facie, not conclusive, evidence of fraud, even as regards a prior creditor, yet the onus is thereby cast on the grantee to show by evidence, which leaves no reasonable doubt on the subject, that the donor, at the time of the gift, was in prosperous circumstances, possessed of ample means to pay all his debts, and that the settlement was a reasonable provision according to the child's station and condition in life,

The endorser of a promissory note which had been protested, is not a competent witness to prove the note as a claim to be used for the purpose of setting aside a voluntary deed made by the maker, because his evidence would assist in creating a fund, or in rendering property liable for the payment of the note, which he, as endorser, would otherwise have to pay.

The purchase of an accommodation note, by a third party, from the payee, made nearly three years after the note fell due, and for more than $ 600 less than the face of it, is usury, and under the act of 1845, ch. 352, the purchaser can only recover against the maker the amount he actually paid for it.

A mutual exchange of notes will amount to a sufficient consideration for the notes so given, but to do so it must appear that it was the intention of the parties to make a mutual exchange of paper, and whether such was their design will depend upon the particular circumstances of each case.

The plea of limitations, set up in the answer to a general creditors' bill, has no effect upon claims coming in subsequently; to affect such claims exceptions, relying upon the statute, must be filed thereto.

In a suit by the endorser against the maker, upon an accommodation note endorsed by the payee when over-due, the maker cannot set-off a note given to him by the payee.

Accommodation notes dated prior to, but not negotiated till after, the execution of a voluntary deed by the maker, and after maturity, are still to be regarded as antecedent debts, when the question is, whether the deed is void as against creditors; limitations begin to run on such notes from their maturity, no matter when discounted.

An accommodation note, though it creates no liability from the maker to the payee, still imposes on the former a contingent liability to whoever may become endorsee thereof for value, which liability is rendered absolute by discounting the note, and as between the maker and endorsee is a valid claim from its date.

If a voluntary conveyance is made with a view or expectation of becoming subsequently indebted, and in accordance with such view or expectation debts are contracted, those who thus become creditors may avoid the deed, although their claims had not, at its date, even a contingent existence.

An indebtedness amounting to $ 4000 at the date of a voluntary deed is sufficient to avoid such a conveyance, the grantor having retained for the payment of her debts only a life-estate in property, the annual value of which but little exceeded the claims, and she being at the time over ninety years of age. 

COUNSEL:
Robert J. Brent and John Nelson, for the appellants:

By the decision in 6 Md. 235, the very deed now sought [**21]  to be vacated, was held to be a valid conveyance of her estate, made by Mrs. Chase, on the 2nd of August 1844, to the appellants, and it must remain as such unless it be now ascertained to have been a fraud upon creditors. The questions, therefore, now to be discussed are: 1st, was this deed a fraud upon creditors; 2nd, are these complainants creditors who can impeach it; and 3rd, if avoided as to antecedent creditors, is it void also as to subsequent creditors?

1st. A deed is fraudulent upon two grounds, 1st for the intention to defraud; 2nd, by being so in effect. Prior creditors can impeach a deed upon both these grounds. Subsequent creditors can impeach it only on the first ground. The history and motives of this deed, the parties to it, the provisions made by her will and codicils, (which are a part of the deed,) for the payment of her debts, her reservation of the life-estate so far beyond her wants, the dedication of this very life-estate afterwards to her creditors, her deed to pay Morris, her letter of the 30th of December 1847, to Banks, relied on by the other side: all these facts show conclusively that Mrs. Chase's principal intention all along, was to provide for [**22]  her creditors and pay her debts. Not a particle of evidence is to be found, showing any other than an anxious pervading desire to pay her debts, and the sad spectacle is seen of an aged female possessed of an ample fortune, reducing herself to downright misery and want, that she might pay debts not contracted by herself for her own use, and for which those who claimed them paid for the most part, a trifling consideration, and with knowledge of her feeble situation. It is in vain that this record is explored for evidence of a fraudulent intention. A fraudulent intention must be proved, it will not be presumed. 3 Md. Ch. Dec., 35, Grover vs. Grover. The evidence shows it was a settlement founded on the best motives, and made under the advice of counsel and friends. It was executed to carry into effect an intention which had existed for years; it was made to make irrevocable a will executed in 1836. If there was fraud upon whom was it to operate? Mrs. Chase never knew that Banks was in life at the date of this deed; Banks, however, had actual knowledge of the existence of this deed, shortly after it was executed, and if he became a purchaser afterwards, he bought with his eyes open to [**23]  the fact, that the title to this property had passed out of Mrs. Chase, and the deed was sufficient to put him upon inquiry as to the trusts contained in the will and codicils. There was then no fraud in fact, either appearing upon the face of the deed, nor any intention to defraud as exhibited by the motives and objects of the parties who executed it. Neither can this deed be impeached upon the other ground, as being fraudulent in effect. This inquiry limits the discussion to the rights of prior creditors and to a consideration of the evidence relating to the dates and amounts of the claims against Mrs. Chase, on the one hand, and on the other, of the situation and value of her reserved estate and means to pay her just debts. We think the principle governing this case is expounded in the case of Baxter vs. Sewell, 3 Md. 334, where it was said by this court, that "an indebtment at the time of executing a voluntary conveyance, is only prima facie and not conclusive evidence of fraud, even as to a prior creditor;" and in the case of Dietus vs. Fuss, 8 Md. 148, where it is said: "The question in such cases is, as to the grantor's ability to pay his debts, the amount of these and [**24]  his means;" and also in Worthington and Anderson vs. Shipley, 5 Gill 449, 458. Atkinson vs. Phillips, 1 Md. Ch. Dec., 507. Sewell vs. Baxter & wife, 2 Md. Ch. Dec., 447, 455; and Bullett vs. Worthington, 3 Md. Ch. Dec., 104. When a voluntary deed has been duly recorded, none but prior creditors can impeach it. 8 Wheat., 229, Sexton vs. Wheaton. 11 Wheat., 199, Hinde vs. Longworth. 12 Johns., 558, Verplank vs. Sterry. The recording of this deed was full notice of the conveyance of this property, 6 Md. 235, and note at 272. 4 Md. 137, Mason vs. Martin. 3 Md. Ch. Dec., 57, Johns vs. Reardon. Is then this deed fraudulent in effect, and this raises the second inquiry.

2nd. Are these complainants creditors who can impeach it? We do not deny that Mrs. Chase appears to have owed some debts at the time of executing the deed, and we admit that the onus of proof is on us to show, that she possessed the means of paying them after the deed was executed, and we expect to be able clearly to establish this fact. But we say that the claims asserted by these complainants when examined upon familiar legal principles, will be reduced to an amount far below the means reserved by Mrs. Chase [**25]  to pay her just debts. In fact these claims have been for the most part trumped up, ante-dated, and to be questioned (some of them) as forgeries. These claims are upon promissory notes purporting to be signed by Mrs. Chase; accommodation notes given to William C. Barney, and passed by him when overdue and payable without recourse, and dated and issued for many thousand dollars on the same day, one large batch appearing to have been issued just before the deed to the appellants, and another just before the deed to Talbott. The answers of the claimants to the interrogatories filed, show what inadequate considerations were paid by the holders, and the court will not fail to observe how evasive and unsatisfactory are some of these answers. Before we proceed to examine these claims in detail, to ascertain who are prior creditors, and the amount of their claims, we inform the court that we have excepted to some of them, and objected, that they are subject to be dismissed from the case or reduced in amount on the following grounds:

1st. That they are not properly in the case, or authenticated, or proved, and are ante-dated.

2nd. For being tainted with usury. Notes given to raise [**26]  money on, create no debt or liability until passed away to a third person, and under the facts proved, many, if not all these notes, were obtained upon usurious terms. 7 Pet., 106, Nichols vs. Fearson. 1 H. & G., 477, Saurwein vs. Brunner. Chitty on Bills, 82. Acts of 1824, ch. 200, and 1845, ch. 352.

3rd. Because they are barred by the statute of limitations pleaded in the answers, and relied on in the exceptions, and limitations applies to the time of filing the claims. 12 G. & J. 36, Hall vs. Creswell. 6 Md. 319, McDowell vs. Goldsmith. 2 Bland, 37, Welch vs. Stewart. Md. Ch. Pr., 142, 143. And this defence applies in equity if the cause of action was suable at law. 1 Gill 248, Berry vs. Pierson. 3 Gill 161, 162, Dugan vs. Gittings. 3 Gill 169, 170, Allender vs. Trinity Church.

4th. Because they were obtained by fraud, imposition and undue influence, practiced upon a very aged woman, and such contracts if not annulled will not be enforced by a court of chancery. 11 Wheat., 103, Harding vs. Handy. 6 H. & J. 442. Watkins vs. Stockett. 1 Wheat., 179, Hepburn vs. Dunlop. 11 Pet., 229, Jackson vs. Ashton. 8 Gill 357, Hays vs. Hollis. 4 Pet., 311,  [**27]  King vs. Hamilton. And this especially where inadequacy of price is added to imposition. 5 Pet., 264, Cathcart vs. Robinson.

5th. Because they claimed under the deed to Talbott, and received their dividends, and are estopped from impeaching the deed to the appellants, which is recited in Talbott's deed, which latter was operative solely upon the life estate reserved in the former. 7 Md. 272, Lanahan vs. Latrobe. 4 Md. 306, Jones, et al., vs. Horsey. 11 G. & J. 314, 327, Moale vs. Buchanan. 10 G. & J. 111, Gibson vs. McCormick. 5 Gill 505, Hall vs. United States Ins. Co. And such ex post facto affirmance will cure any original fraud. 12 Johns., 552, Verplank vs. Sterry.

Let us now, keeping in view these legal principles, proceed to examine on the one hand the claims presented against Mrs. Chase's estate, and on the other, the amount and value of her estate, reserved by the deed to the appellants to pay them. The total amount of debts appearing to be antecedent to the deed is about $ 7122.50. In the most unfavorable aspect, this is absolutely all Mrs. Chase owed at the date of this deed. Now, of this indebtment, is 1st, the note held by N. Williams for $  [**28]  250, and his account for $ 100. This amount is subject to our first objection: it is not properly in the case. Mr. Williams has not and does not file or assert it, and he claimed under Talbott's deed and accepted his dividend. 2nd. Mrs. Oldfield's debt to Sarah Polk, for $ 100, the note to Pitts for $ 250, and Elion's claim for $ 350. These are undisputed debts, but are all subject to our third objection on limitations, as they were none of them filed in this case, until returned, with the commission under which they were proved, on the 17th of February 1851. 3rd. Renwick's note of the 30th of July 1844, for $ 2000. This note was passed to him after due by Barney and after Mrs. Chase's death, in 1849, and was filed in the case before the commissioner on the 17th of February 1851, and as it fell due the 2nd of August 1846, it is liable to our third objection on limitations. His answer admits he got this note on the 16th of June 1849, and that he then paid for it in cash, and accounts only for $ 1306.12, to Barney. Now it is proved that Mrs. Chase gave Barney these notes to raise money on, that he had no means, and could not even pay his tailor's bill, that Mrs. Chase never used these [**29]  notes herself. So we say this was not an obligation or note until passed by Barney to Renwick, and the facts then show it was also liable to our second objection for usury, and he could only claim under the act of 1845, ch. 352, his real advance of $ 1306.12. Besides this, we deny that Renwick is properly a party in this case, and say his claim is subject to our first objection. He is clearly a subsequent creditor, because he became such in 1849, after he had constructive notice of our deed of trust. 7 Pet., 106, Nichols vs. Fearson. 1 H. & G., 477, Sauerwein vs. Brunner. 6 Md. 272, note. 4th. Complainant's exhibit No. 4, dated 30th of July 1844, for $ 2000, payable at one year. This claim is an interloper; no one asserts the ownership of it; it is not proved, and its execution only proved by Pitts to whom we have excepted as an incompetent witness. In fact this note without an owner has been put into the case to swell the amount of debts dated anterior to our deed of trust. It is subject to our first objection, as not properly in the case; it was not filed until the 17th of February 1851, and is also subject to our third objection on limitations. 5th. Is Bank's claim described [**30]  in his bill, and appearing to be dated the 30th of July 1844, for payment one year after date, of $ 2000. We find a mystery surrounding this note. The bill describes his claim, the only one described, as exhibit D. B., No. 1, but the note is marked exhibit No. 5. The answer of Banks, though evasive, admits he got it, after its maturity, from one Earhart. It is uncertain which exhibit is referred to in his answer; this however is the only claim filed as of that date. But however this may be, whether we go on his admission or the evidence, he got this note after he had notice, both constructive and actual, of the deed of trust to Williams. This note is also subject to our second objection, and under the testimony of both Dobbin and Talbott, is especially subject to our fourth objection for fraud and imposition. Dobbin states that Banks knew of the undue influence exercised by Banks over Mrs. Chase, Talbott confirms this, and the answers of Banks, his exhibits especially, leave us no room to doubt that he was and is the principal speculator upon the feebleness of the aged grandmother, and the viciousness of the grandson, with a view to overthrow, for his own gain, "the just and honest [**31]  expectations based upon a voluntary deed or settlement, unaffected by the slightest taint of fraud at the time of its execution." 6 Md. 266. But this claim is also subject to our fifth objection, as the evidence shows Banks claimed and received dividends under the deed to Talbott. Now these items embrace absolutely every claim appearing to be dated before our deed of trust.

But if none of our objections are well founded, and the full amount of these antecedent debts become established, we shall now proceed to show that Mrs. Chase reserved an estate and means sufficient to pay them all. Admitting, for the sake of the argument, that all these claims are just, say $ 7122.50, what was the value of her reserved estate? The evidence clearly shows that this reserved estate, after deducting her support, was of the annual value of $ 4137.17, and from the date of the deed to her death, in March 1848, was, therefore, worth at least $ 14,480.09, or more than sufficient to pay all claims asserted of date prior to the deed twice over. But by our exceptions above stated, we show that her income for one year was more than enough to pay every just debt; less than six months income would pay [**32]  them all.

Now can it be pretended for a moment, that under this state of facts our deed was fraudulent in effect? A reservation of so valuable an estate, and its subsequent dedication to pay her debts, must clearly save both the deed and the name of Mrs. Chase, from any reproach before a court of equity, and must save from the clutch of a shameful speculation the "just and beneficent trusts of her family settlement." Nor can the allegation of the bill, that "she intended to hinder and delay" her creditors, find any better support than the allegation, that she intended "to defraud" them. The providence of God has proved that her life estate was more than doubly equal to the payment of her debts, even as now asserted. That she was advanced in years when she made this deed, might make it uncertain if her life estate would pay her debts, though she was then in vigorous health. But when this bill was filed and our deed assailed, her life was closed, and that was rendered certain which was before, perhaps, in doubt. It must be here observed, that we are considering the fraudulent effect of the deed, not the intention. Have these creditors been delayed? If any of them stopped to gather [**33]  their fruits from Talbott's deed, did we delay them? If they held their claims in Mrs. Chase's life time, dated as they now appear, why did they not proceed to execution, if necessary, against her life-estate, or if they needed the help of equity, was it not as easy to subject her life-estate to pay their claims, as it was then, or is now, the fee simple? We have seen the life estate was more than sufficient: all the "hindrance and delay" have been of their own choice. Have they preferred to wait until death had shut out the light that this poor old lady's answer might turn upon their bill? or, more consistent with the rapacious course that some of them have pursued, continued to gather in the spoils from Barney's repository, that they might be able to sweep the whole estate? Such is at least the scope and object of this proceeding, and we see that the principal subsequent creditors, who wait behind the advancing prior ones, bear the same names, the same interests. It should be observed, that all these debts on account of Barney, are provided for in the 7th item of the 1st codicil to her will, and we say the true construction of this provision is, to cover all such liabilities at the [**34]  date of our deed of trust, when the ambulatory nature of the will became fixed, and its provisions incorporated as the trusts of the deed, according to the doctrine in Mayor & C. C. of Balto. vs. Williams, 6 Md. 235.

3rd. But we further insist, that if this deed should be set aside as fraudulent as against antecedent creditors, the subsequent creditors should not be let in to participate in the fund. When a voluntary conveyance is vacated for constructive fraud only, and not for actual fraud, can subsequent creditors come in? They have no power to file a bill to set the deed aside, because they had no rights to be affected by it at the time of its execution. In the case of actual fraud the deed is a nullity, but not so with a voluntary deed; it is good inter partes. There is no decision of the Court of Appeals of this State, which has ever decided this question; it was not decided in Waters vs. Dashiell, 1 Md. 455, nor in Worthington vs. Bullitt, 6 Md. 172. This court is, therefore, left free to decide the question, as it ought to be decided, upon principle. The subsequent creditors alone, without antecedent debts, could obtain no relief against such a deed, and Mr.  [**35]  Justice Story, in his Eq. Jur., sec. 361, says, there is "some difficulty in perceiving how the subsequent creditors can make out any right as against the voluntary grantees, through the equity of the antecedent creditors." Again, our registry laws, in accordance with which this deed was recorded, give notice which is binding upon all subsequent creditors and purchasers, (6 Md. 272, note,) and having therefore at the time of contracting their debts, notice of the existence of this deed, how can they be said to be "hindered, delayed or defrauded" by it? The statute of 13 Elizabeth, ch. 5, is aimed not against voluntary deeds as such, but only against those that are fraudulent as against creditors, and how can a deed be fraudulent as to a creditor, who contracts his debt with full knowledge of its existence and provisions?

James Malcolm, St. George W. Teackle and J. V. L. McMahon, for the appellees:

1st. As to the fraudulent character of the impeached deed of August 1844:--This deed conveys all the property of the grantor, without any exception whatever, upon the trusts declared by her previous will and codicils, and thereby (according to the construction of that deed by [**36]  this court in 6 Md. 235) passed the whole property immediately and irrevocably to the trustees, upon the trusts, as if recited in the deed. By this deed, therefore, it appears that Mrs. Chase placed all her property beyond the reach of her creditors, except the rents and profits of her reserved life-estate, she being then about or quite ninety years old, and one-half of such rents as might arise after her decease, from a ground rent of $ 43.50, and from the leasing thereafter by the trustees of an unimproved and unleased piece of ground called "Newington," containing about seven acres, which latter, by her will, is made applicable, and only after her decease, to any balance of money due and owing from her at her death, on account of her grandson William Chase Barney. This deed is in law fraudulent and void, as to the then creditors of Mrs. Chase, not only because it did not leave open to them an ample and unembarrassed sufficiency of property to pay their edbts in any mode, but also because it threw them for the payments of their debts, during her life, upon the mere rents and profits of her property, and that only to be reached against and not under the trusts, and after her death [**37]  left no property applicable to the payment of any of them, except only the half of the rent of $ 43.50, and of "Newington," when leased, and that only to pay such of them as fall within the special trusts above stated. And being thus fraudulent and void as to prior creditors, it was properly vacated and set aside for the benefit of all creditors, subsequent as well as prior. It was also void as to subsequent as well as prior creditors, because it was made in contemplation of future indebtedness by Mrs. Chase, and to protect her property against such future indebtedness, and that too by means of a deed, whose trusts, after her decease, being declared by her will, were necessarily kept secret from such creditors, and her purposes as to them and their debts kept concealed from them until her death. These positions are fully sustained by the authorities. 3 Md. 11, 37, 40, Green vs. Trieber. 1 Md. 470, Waters vs. Dashiell. 8 Md. 426, 427, Malcolm vs. Hodges. 3 Md. 52, Sangston vs. Gaither. 5 Gill 449, Worthington & Anderson vs. Shipley. 1 Md. Ch. Dec., 507, Atkinson vs. Phillips. 2 Md. Ch. Dec., 455, Sewell vs. Baxter & wife. 3 Md. Ch. Dec., 105, Bullett vs. Worthington.  [**38]  2 Younge & Coll., 172, 177, Ede vs. Knowles. 1 Conn., 525, Salmon vs. Bennett. 9 Smedes & Mar., 394, Arthur vs. Commercial & Rail Road Bank of Vicksburg. 13 How., 98, Parish vs. Murphree. 4 Cond. Eng. Ch. Rep., 265, Richardson vs. Smallwood. 2 Bland, 35, Kipp vs. Hanna. 10 Paige, 210, Brownell vs. Curtis, et al. 6 Barb., 91, Browning vs. Hart. 1 Amer. Lead. Cases, 55 to 73, (3rd Ed.) 1 Story's Eq., secs. 361 and notes, 354, 355. 1 McCord's Ch. Rep., 518, Iley vs. Niswanger.

2nd. As to the existence of the prior indebtedness. The record clearly shows the existence of such indebtedness, amounting in the aggregate to over $ 7000, and among these debts is the claim of Elion upon a note dated the 2nd of July 1844, upon which he obtained judgment against Mrs. Chase, herself, in 1846. In regard to the defences set up to defeat these as well as the other claims, it will suffice here to say, that the judgment of Elion is unobjectionable on all points: that Renwick's claim on this note for $ 2000, dated 30th of July 1844, is free from the objections of limitations, which is not pleaded or objected to it, and of acceptance of dividends under Talbott's deed; that Banks' (exhibit No. 1 or [**39]  No. 5) is free from limitations, his bill having been filed within three years after its maturity, and he received no dividends on it under Talbott's deed, nor is there any such objection to it, or indeed to any other claim of Banks, set up either by the answers to his bill, or by the only exception to this and his other claims; that Mills' is free from limitations, this claim being specifically excepted from that objection, by the only objection or exception to it, and also from the only other objection made to it, of the acceptance of dividends under Talbott's deed. It has been objected, that the notes dated the 30th of July 1844, though dated prior to the deed, are not antecedent debts, because they were accommodation notes, and were not passed to the present holders and claimants till they were over-due. This however cannot be law, for every note is presumed to be made when dated, and made upon consideration, unless the contrary is proved, and when endorsed, it is presumed to be endorsed about the time of its date, (6 Md. 338, McDowell vs. Goldsmith,) and as soon as an accommodation note is passed it becomes a debt ab origine, and limitations begin to run from its date. 1 Amer.  [**40]  Lead Cases, 71, 72, 73, (3rd Ed.) It may here also be remarked, that there are many of the claims against which no objections have been set up, either by way of answer, exception or objection, and of these a part consist of judgments against Mrs. Chase herself, in her lifetime.

3rd. As to the defence of limitations. The judgments above stated including that of Elion, are, of course, unaffected by this defence. As to Banks' claims, none of them were due more than three years before the filing of his bill, and are therefore unaffected by the defence of limitations; and even if they were, the acknowledgment of Mrs. Chase, and her express approbation of his taking certain of these claims, and that he should take them for the reasons there assigned, as proved by Mrs. Oldfield, and her written note of the 30th of December 1847, witnessed by the defendants, Mrs. Oldfield and Mrs. Barney, are of themselves amply sufficient, to take his claims out of the statute. 9 Md. 52, Peterson vs. Ellicott. The only other claims against which this defence is set up, are those of N. Williams, S. Polk and C. H. Pitts. In regard to these, and indeed, all the claims in the case, we insist that the [**41]  defence does not apply, because the trusts of the impeached deed excluding the grantor's creditors after her decease from payment out of any part of her property, except the rents of a small part above mentioned, were not notified to her creditors, but, as declared only by her will and codicils, were necessarily kept secret from them until her death, and the probate of her will in April 1848, at which time the fraud was discovered, and from that time only the statute began to run against the claims of the defrauded creditors; also that this defence does not apply to them, because, with one or two exceptions, these claims were not barred at the period of her death, and the trusts of her will for the payment of them out of part of the rents of "Newington," speaking as of the date of her death in March 1848, are sufficient to preclude the bar as to such debts then existing and not barred.

4th. As to the defences of usury, ante-dating, want of consideration and fraud:--The answers allege these defences against the claims of the original complainants, and the exceptions urge the same objections against the claim of Renwick. Now as to Renwick's claim, there is no proof of ante-dating [**42]  or of fraud, and the only objection which could be taken on the score of original want of consideration, and of being taken by him after it was due, is fully disposed of by this court in its decision on this very note, in his suit on it against the executors of Mrs. Chase, who are also the trustees under this deed, in 2 Md. 356. But the mere fact of want of consideration between the original parties to a note will not shift to the endorsee the onus of proving that he gave value for it. 6 Md. 515, Ellicott vs. Martin, Love & Co. 85 Eng. 238, C. L. Rep., Fitch vs. Jones. Again, there was consideration for this note as between the original parties to it. It is dated the 30th of July 1844, and the proof shows that on the same day Barney gave his note to Mrs. Chase for $ 4000. There were then, on the same day, cross-notes given by these parties,--a mutual exchange of paper, which constitutes a sufficient consideration for the notes. Byles on Bills, 191. The defence of usury, therefore, fails as to this claim, but if there be usury the claim is only void as to the excess, under the act of 1845, ch. 352. As to the claims of Banks, we insist that there is no tittle of proof in the [**43]  record to sustain any of the defences urged against them. So far from there being any evidence to sustain the allegation of any fraud or fraudulent contrivance on his part to obtain these claims, the evidence by Mrs. Chase's own written statement for him, of the 30th of December 1847, witnessed by the defendants, her daughter and granddaughter, Mrs. Barney and Mrs. Oldfield, and her previous approbation of his taking them, and her expressed desire, as proved by Mrs. Oldfield, coupled with her acknowledgment of him as her largest creditor, and of his kindness and generosity towards her, and her anxious desires, there expressed, that a part of her property should be sold to pay his claims, and that he should have as little trouble as possible in getting them, not only repel any such imputations, but on the contrary rather evince fraud on him in the effort to put the claims upon him if there was a purpose to impeach them on any such ground, or to exclude them from payment.

5th. As to the objection of acceptance of dividends under Talbott's deed:--The only claims which, by the record, are objected to on this ground are those of Williams, Polk, Pitts, Elion and Mills, and none of the [**44]  claims, prior in date to the deed, are open to this objection, if it had been made, except those of Williams, Polk and Pitts, and by the terms of Talbott's deed it excluded all debts contracted after its date, the 30th of January 1845. As to Banks, though there is no objection for this cause to any of his claims, there is evidence of his receiving dividends on some claims, but on what does not sufficiently appear, but it is expressly admitted that his claim on the note filed with his bill of the 30th of July 1844, did not receive any dividend.

By reference to this deed, it will be seen, that all the rights granted to creditors by it take effect entirely under it, and that instead of being made to carry into effect any rights secured to creditors by the previous and impeached deed of 1844, or even being in consonance with it, it merely appropriates, unconditionally for their benefit, the profits of her life-estate, which was secured to her under the deed of 1844, and then assuming the whole property to be under her control, re-grants it, after her decease, on the secret trusts of her will and codicils. The property, subject only to her life enjoyment of the profits, having been [**45]  irrevocably vested in the trustees, under the deed of 1844, her conveyance in 1845 was purely inoperative and void at her decease, because of the expiration of her title at that period, as shown by the deed itself. And as to the claims against which this objection has been urged and proved, (if any,) we insist, that the acceptance of dividends, under Talbott's deed, even if conceded, did not preclude the claimants from impeaching the prior deed of 1844, as fraudulent, or from claiming payment if that deed is set aside as fraudulent, at the instance of other creditors; that the acceptance of benefits derived to them entirely from the deed of 1845, was no assent to the prior deed, but rather the contrary, and was, at the most, but an assent to the reception of the rents and profits from her, or her trustees, unconditionally appropriated, without any express or implied agreement on their part, beyond the extent of her title, or for any surrender or compromise of their claims, or of their right to enforce them, at her death, against the prior title, and, at most, but a payment pro tanto on account of such claims; that such acceptance, even if it could possibly be deemed an assent to the [**46]  prior deed, if it is claimed to be an act of election on the part of the creditor to abandon his rights as against the first deed, for the benefits given to him by the second, (if conceded to be a case for election, as it is not,) could not bind him as such, if made in ignorance of his rights, nor unless made with a full knowledge of all the facts material to such an election, and especially of the extent to which that deed affected his rights and required his surrender of them; and if it is alleged to be an assent to, or an acquiescence in, a fraudulent deprivation of his rights, could not in law operate as a binding confirmation by the creditor of such act of fraud against himself, unless made with the full knowledge of the fraud practiced upon him, and the extent of it; and that, therefore, such an acceptance could not, in this case, operate as such an election or confirmation, be cause the trusts of both deeds, after her decease, being declared only by her will and codicils, were thus necessarily concealed from, and were in fact unknown to, the creditors, until her death, and did not even furnish any presumption of intent by them (until they were made known at her death) to preclude [**47]  the creditors from payment at her death, but the contrary. And as to the claims, (if any,) against which this objection may be urged, although not alleged against them by answer or exception, that they are not affected by it, not only upon the grounds above stated, but also because they were not thus objected to. For these positions see 2 Story's Eq., secs. 1075, 1089, 1092, 1097, 1098. 2 Sch. & Lef., 486, Mauray vs. Palmer. 2 Ball & Beatty, 317, Dunbar vs. Fredeunick. 5 Cond. Eng. Ch. Rep., 468, Cockerell vs. Cholmeley. 3 Cond. Eng. Ch. Rep., 298, Honner vs. Morton. 3 Cond. Eng. Ch. Rep., 411, Coleman vs. Jones. 2 Mylne & Keene, 225, Bennett vs. Colley. 1 Hoffman's Ch. Rep., 280, Fish vs. Miller. 9 Pet., 608, Owings vs. Hull. 3 Yerger, 369, Cherry vs. Newsom. 3 Call., 476, Broddus vs. McCall. 14 Pick., 221, Rice vs. Catlin. 1 Jarman on Wills, 389. 2 Sumner, 563, Flagg vs. Mann.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*224]  The opinion of the court was delivered as follows:
By Justice ECCLESTON:--
This bill was filed for the purpose of vacating the voluntary deed executed by Hannah K. Chase, on the 2nd of August 1844,  [**48]  upon the ground of its being void, because fraudulent as to creditors, under the Statute of 13th of Elizabeth, ch. 5. The suit was instituted for the benefit of the complainants and all other creditors of the grantor, who should come in and contribute 

 [*225]  to the expenses of the proceeding. Both antecedent and subsequent creditors are claimants.
The deed was executed for the purpose of conveying to Nathaniel Williams and Joseph B. Williams all the estate and property, real and personal, of the grantor, in trust "to suffer and permit the said Hannah K. Chase and her assigns, for and during the period of her natural life, to have, hold, use, occupy, possess and enjoy, all and singular, the estate, chattels, effects and property thereby conveyed and assigned, and the rents, issues, income and profits thereof, during that period, to receive and take, and the same to apply to such uses and purposes as she might think proper; and from and immediately after the decease of the said Hannah Kitty Chase, then in trust, and under and subject to the like powers, limitations, restrictions and conditions as are mentioned, expressed and declared, of and concerning the estate and property [**49]  generally mentioned in and devised by the last will and testament of the said Hannah Kitty Chase, to the trustees therein named, and in and by the three several codicils by her made to said will." The date of the will, and the dates of the three codicils referred to, are stated in the deed.
With the exception of a lot of ground called "Newington," and a ground-rent of $ 43.50 per annum, according to the provisions of the deed, (considering the will and three codicils as constituting parts of the same,) the trustees were to hold the whole estate of Mrs. Chase, after her decease, for the use of her daughter and grandchildren.
By the 10th clause of the will, "Newington" and the ground-rent of $ 43.50 were to be for the use of William C. and Samuel C. Barney equally. By the codicil dated the 9th of June 1841, this provision of the will is revoked, and one-half of "Newington" and of the said ground-rent are to be held in trust for the use of Samuel C. Barney; the other half being disposed of in the following language: "And whereas, I am now liable for the payment of large sums of money for and on account of my grandson, William Chase Barney, the payment of which I am gradually effecting [**50]  during my life, but which may not be wholly accomplished before my death, I 

 [*226]  direct my said trustees to hold the other undivided one-half part of the said property, in trust for the following uses, intents and purposes, that is to say, in trust to apply the rents, issues and profits of the said half part, in the first place, to the payment of any balance of money due and owing from me at the time of my death, for or on account of my said grandson, William C. Barney." And after such payment the said half is directed to be held in trust for his use for life, and then for his children.
Previous to any examination of the proof in regard to the condition of Mrs. Chase's affairs, at the date of this deed, we deem it proper to notice some decisions with reference to the construction of the Statute of 13th Eliz., ch. 5.
The cases on this subject are numerous, and distinguished jurists have entertained conflicting opinions in regard to the interpretation of the statute in some respects. To undertake an examination of the decisions, with a view of reconciling them, would require much labor without any hope of success.
In Reade vs. Livingston, 3 Johns. Ch. Rep. 481, [**51]  Chancellor Kent held, that indebtedness at the time of executing a voluntary conveyance, conclusively fastens upon the instrument a fraudulent character, as an inference of law, with reference to the claim of an existing creditor. But this doctrine has been repudiated in Worthington & Anderson vs. Shipley, 5 Gill 449. Instead of sustaining Chancellor Kent our Court of Appeals refer to the opinion of the Supreme Court of Connecticut in Salmon vs. Bennett, 1 Conn. 525, as enunciating what is to be considered the true interpretation of the Statute of Elizabeth. And there we find it said: "Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors, where it is for a child in consideration of love and affection." "Nor will all such conveyances be valid, for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved, for this would be impracticable in many instances where the conveyance ought not to be established."

 [*227]  In the same opinion it is held, "that [**52]  a voluntary conveyance may be valid against existing creditors if there is no actual fraud intended, and the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child, according to his state and condition in life, comprehending but a small portion of his estate, and leaving ample funds unencumbered for the payment of the grantor's debts. But though there be no fraudulent intent, yet, if the grantor were considerably indebted and embarrassed at the time, and on the eve of bankruptcy; or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts, then such conveyance will be void as to creditors."
The conclusion of the court's opinion in Worthington & Anderson, vs. Shipley, shows, that although an indebtment at the time of a voluntary deed, is only prima facie and not conclusive evidence of a fraudulent purpose, even as regards a prior creditor, yet the onus is thereby cast upon the grantee of showing "that the grantor, or donor, at the time of the gift was in prosperous [**53]  circumstances, possessed of ample means to discharge all his pecuniary obligations, and that the settlement upon the child was a reasonable provision, according to his or her station and condition in life." See, also, 11 Wheat. 211, Hinde's Lessee vs. Longworth; 13 How. S. C. Rep. 99, Parish, et al., vs. Murphree, et al.
With the cases of Salmon vs. Bennett, and Worthington & Anderson vs. Shipley, before him, in Bullett vs. Worthington, 3 Md. Ch. Dec. 99, Chancellor Johnson, we think, very correctly said: "The party who sets up a voluntary conveyance in opposition to the claims of pre-existing creditors, is required to show, by evidence which leaves no reasonable doubt upon the subject, that the means of the grantor, independent of the property conveyed, are abundantly ample to pay them all. If there be a reasonable doubt of the adequacy of his means, or if his property be so encumbered, that delays, difficulties and expense, must be encountered before it can be made available to his creditors, then, as I conceive, the 

 [*228]  voluntary conveyance must fall, because then it has the effect to delay and hinder his creditors.  [**54]  "
We will now endeavor to ascertain whether claims have been exhibited and proved, which, in point of character and amount, are sufficient to justify a decree for vacating the deed in controversy.
The claims relied upon by the complainants as antecedent debts, are the following:

________________________________________________________________________________

The note given to N. Williams, on the 9th of December,	
  1841, for	$ 250 00	
N. Williams' account for fees,	100 00	
Mrs. Oldfield's debt to Sarah Polk, 6th of May 1843,	100 00	
Note given to C. H. Pitts, 18th of June 1844,	250 00	
Note to H. C. Elion, 2nd of July 1844, payable six months	
  after date,	350 00	
Note to W. C. Barney, July 30th, 1844, payable two years	
  after date, and endorsed to W. P. Mills,	300 00	
A Note dated the 30th of July 1844, payable two years after	
  date, given to W. C. Barney, and endorsed by him	
  to R. Renwick, 16th of June 1849, marked Exhibit No. 3,	2000 00	
A note dated the 30th of July 1844, payable to W. C.	
  Barney one year after date, now claimed by D. B.	
  Banks, marked Exhibit No. 4,	2000 00	
A note dated the 30th of July 1844, payable to W. C. Barney	
  one year after date, which is described in the Bill	
  of Complaint as held and owned by D. B. Banks, marked	
  Exhibit D. B. B., No. 1, but appearing under the commission	
  to be No. 5,	2000 00	
   Total amount exclusive of interest,	$ 7350 00	
________________________________________________________________________________

 [**55]  
In the examination of the proof by which these claims are sought to be established, the evidence of Mr. Pitts must be held inadmissible. He has been objected to on the ground of interest, because the note given to him by Mrs. Chase was endorsed by him to W. H. Harrison & Co., and has been protested for non-payment. We think he is not competent to prove the existence of a claim, to be used for the purpose of authorising a decree to set aside the deed; as his evidence would be to assist in creating a fund, or in rendering property liable for the payment of the note, which he, as endorser, would otherwise have to pay; and without the least prospect of his ever being repaid, unless this deed is declared void; 

 [*229]  for if valid Mrs. Chase's estate is largely insolvent. See Owens vs. Collinson, 3 G. & J. 25, 33, 34; Clagett vs. Hall, 9 G. & J. 80, 97.
The testimony of this witness being the only proof to establish either the execution or the indorsement of the note of the 30th of July 1844, marked Exhibit No. 4, it must be regarded as having no proof to sustain it.
The signature of Mrs. Chase to each of the notes mentioned in the foregoing [**56]  list of claims has been proved by the witnesses, Alexus B. Wolfe and Joshua Cockey. Her signature to the claim of Sarah Polk has also been established by the same witnesses.
Upon the note to Elion he obtained judgment against Mrs. Chase, on the 28th of March 1846.
The complainants filed the following interrogatories, to be answered by W. P. Mills:
"First.--When did you receive the promissory note referred to in your petition, filed with the papers in the aforesaid case of Banks and Stewart against Williams and others? From whom did you receive it? and was it after it was overdue? File the original note, or a copy of it, with your answer.
"Second.--What consideration was paid for it, in money or otherwise, by the payee to the pretended maker of said note? Did the payee ever state to you the consideration he had paid for it, or that he had paid no consideration therefor?
"Third.--What consideration did you pay for said note; in money or otherwise? To whom did you pay any consideration?
"Fourth.--Has any other person than yourself, and if any, what person, any interest in said note?"
Interrogatories similar to these were propounded to R. Renwick, in reference [**57]  to his claim, exhibit No. 3.
D. B. Banks was also required to answer like interrogatories in regard to his claim, spoken of in the bill as exhibit D. B. B., No. 1, but which is exhibit No. 5, according to its description under the commission. The interrogatories to Banks are omitted in the record, but it is conceded they were like 

 [*230]  those propounded to Mills, and the answers to them show the propriety of the concession.
Under the act of 1785, ch. 72, sec. 21, the answers to such interrogatories are "evidence in the cause, in the same manner, and to the same effect, that the defendant's answer to the plaintiff's bill is evidence."
Mills answered as follows:
"1. I received the note in question from William Chase Barney before its maturity; the precise day I cannot state; the original is already filed.
"2. I do not know what consideration was paid for said note by the payee to the maker; the payee did not state to respondent any thing about the consideration he paid for said note; never stated that either he or the maker had had no consideration therefor.
"3. I paid the full value of the note in question to William Chase Barney, partly in money, partly in clothes.
"4.  [**58]  No one but myself is interested in said note."
R. Renwick's answer to the first interrogatory is, "that the note filed in this cause came into his possession on the 16th day of June 1849, after it became due, from William Chase Barney, the payee." To the second interrogatory he says, he "does not know what consideration was paid for said note by the payee, and he never informed him, and never told him that he had paid no consideration." To the third interrogatory he answers, "that he paid the sum of fifty-five dollars and fifty cents, in cash and furniture, on the 16th day of June 1849, and receipted a bill of furniture, due to this respondent from payee, amounting to one thousand sixty-seven dollars and twenty-nine cents, with interest thereon, making a sum total of $ 1306.12, paid for said note by this respondent to said payee, William Chase Barney." The fourth interrogatory is answered by saying, "that no other person than this respondent has any interest in said note."
D. B. Banks answers the interrogatories in the following manner:
To the first he says: "That he does not recollect the time when he received the promissory note mentioned in the said 

 [*231]  interrogatory, [**59]  as he received at different times several notes of similar date and amount with the one mentioned in said interrogatory, and drawn and endorsed by the same parties; that he thinks he received the note mentioned in said interrogatory from George W. Earhart, from whom this respondent purchased it. This respondent thinks he received the said note after its maturity."
To the second interrogatory he answers: "That he cannot recollect the sum paid by him for the note mentioned in said interrogatory, because there were several notes of same date and amount received by him at different times; nor does he know what consideration was paid to the maker of said note by William C. Barney or any other person, but that the amount of the different notes drawn by Hannah K. Chase, and held by this respondent, were acknowledged by her to be due to this respondent by her."
To the third interrogatory he says: "That he is under no engagement to pay Wm. Chase Barney the consideration, or further consideration, in the event of a recovery of said note in whole or in part; the said note was bought and paid for as the property of this respondent, and is absolutely his without any contingent consideration connected [**60]  in any possible way with it whatever."
These answers of Mills and Renwick show the sale and transfer, from Wm. C. Barney, of the notes claimed by them respectively. So likewise the answers of Banks are evidence of the sale and transfer, from Barney, of the note marked exhibit No. 5, but cannot be regarded, under the act of 1785, as proof in support of the note, marked exhibit No. 4. The interrogatories relate alone to No. 5, and what is said in the answers respecting any other note cannot be evidence, because not responsive to the interrogatories.
In their statement, or brief, the defendants say: "Before we proceed to examine these claims in detail, to ascertain who are prior creditors, and the amount of their claims, we inform the court that we have excepted to some of them, and objected that they are subject to be dismissed from the case or reduced in amount on the following grounds:

 [*232]  "1st. That they are not properly in the case, or authenticated, or proved, and are ante-dated.
"2nd. For being tainted with usury. Notes given to raise money on, create no debt or liability until passed away to a third person, and under the facts proved, many, if not all these notes [**61]  were obtained upon usurious terms.
"3rd. Because they are barred by statute of limitations, pleaded in answers, and relied on in exceptions, and limitations applies to the time of filing claims.
"4th. Because they were obtained by fraud, imposition and undue influence practiced upon a very aged woman, and such contracts, if not annulled, will not be enforced by a court of chancery.
"5th. Because they claimed under the deed to Talbott, and received their dividends, and are estopped from impeaching the deed to appellants, which is recited in Talbott's deed--which was operative solely upon the life-estate reserved in the deed to Williams."
Under the first objection it has been contended that some of the earliest claims are not properly in the case, because the claimants did not file them, and are not insisting upon their being paid. But surely the complainants have a right to show the existence of those claims at the date of the deed, when they are seeking to invalidate it upon the ground of the grantor's indebtedness at the time of its execution. And we suppose it cannot be seriously insisted, that the claims of those who came in as parties after the bill was filed are not properly [**62]  in the case, merely because they did so come in.
As regards the want of authentication or proof, the objection is a good one in reference to the claim, exhibit, No. 4. But that we entertain a different opinion as regards the other claims mentioned in the foregoing list will appear from what has already been said.
With reference to ante-dating, we see no proof sufficient to establish it in this case, in opposition to the legal prima facie presumption that each note was executed by the maker at the date upon its face.
The second ground of objection is usury. Without deciding 

 [*233]  whether this defence is properly presented by the answers and exceptions, in regard to all the antecedent claims, we will treat it as if it were so.
Usury has not been relied upon against the claims of N. Williams, S. Polk, C. H. Pitts or H. C. Elion. The last being a judgment against Mrs. Chase, on a note dated the 2nd of July 1844. The defendants, in their statement, say: "These are undisputed debts, but are all subject to our third objection on limitations as they were none of them filed in this case until returned with Mr. Pinkney's commission, under which they were proved on the [**63]  17th of February 1851."
Mills' claim cannot be defeated upon the ground of usury. His answers to the interrogatories, in the absence of contradictory proof, must exclude such a defense.
R. Renwick's claim, (exhibit No. 3,) came into the cause after the answers to the bill were filed. The 5th exception of the defendants, as set forth in the record, objects to this claim in the following language:
"And they further except to the note filed among the proceedings and proved by the affidavit of Robert Renwick, because the same was executed long subsequently to the deed of the 2nd of August 1844, and ante-dated so as to appear antecedent to said deed, and because, even if the same were not ante-dated, the said note remained in the hands of W. C. Barney, who held the same for his own accommodation until long after the date of said deed, and after the death of said H. K. Chase, when the same was paid to said Renwick, at the time and for the consideration stated by said Renwick; and the said note then, and not prior to the execution of said deed, became available as against the estate of said H. K. Chase, and because the said note was concocted and originated in usury to which said Renwick [**64]  was a party, and nothing is due thereon except the amount so stated by him to have been paid thereon." By this exception the defence of usury is presented, in regard to the claim.
As the debt existed prior to the adoption of our new constitution the provisions of that instrument, on the subject of usury, can have no effect upon it. And under the act of 1845, ch. 

 [*234]  352, a contract tainted with usury was not void in toto, but only void to the extent of the usury, and valid for the amount actually paid or lent.
The proof has fully convinced us, that no consideration for the note in question was given by the payee to the maker;--that it was purely for the accommodation of the former; and that Renwick took it from him nearly three years after it fell due, paying only $ 1306.12 for the same, it being a note for $ 2000.
The complainants contend, that conceding the note was purchased, as above stated, still it was not usurious, because there was a valid consideration passing between the maker and payee. In support of which they rely upon the fact, that at Mrs. Chase's death, there was, amongst her papers, a note to her from W. C. Barney, for $ 4000, dated the 30th of July [**65]  1844, payable one year after date. The existence of such note, it is said, shows a mutual exchange of notes, constituting a valid consideration for each; and consequently the purchase by Renwick, although at much less than the amount of the note he received, did not render the transaction usurious. Whether, under the circumstances of this case, such would be the effect of a mutual exchange of paper, we need not stop to inquire, because we do not think there was any such exchange as would make each note an available consideration for the other. That this sort of exchange, which the authorities sometimes call "cross-notes," will amount to a sufficient consideration has been frequently held. But to do so it must appear that it was the intention of the parties to make a mutual exchange of paper. And whether such was their design will depend upon the "particular circumstances of each case." Chitty on Bills, 565, (Ed. of 1821.) In the case before us Barney was known to Mrs. Chase to be an extravagant spendthrift of the means she was furnishing him with, in cash, by sales of her stocks and by loans or gifts of her notes, totally insolvent, and indeed without funds to procure food [**66]  and clothing for himself, without her assistance. And we have yet to see the proof that he ever paid her back one of the many notes he received from her. In view of such facts we cannot, for a moment, suppose that 

 [*235]  Mrs. Chase either gave her note in consideration of Barney's, or that she intended the transaction between them should be what the law will regard as a mutual exchange of notes.
In Munn vs. The Commission Company, 15 Johns. Rep. 55, Mr. Justice Spencer says, in delivering the opinion of the court: "If a bill or note be made for the purpose of raising money upon it, and it is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it, can, as between themselves, maintain a suit on the bill when it becomes mature, provided it had not been discounted, then such discounting of the bill would be usurious." See also Sauerwein vs. Brunner, 1 Har. & Gill 477, and Williams vs. Reynolds & Smith, 10 Md. 57, in regard to the subject of usury.
When the note now in question came to maturity it had not been disposed of by Barney, the payee, and a suit upon [**67]  it could not have been maintained by him against the maker, Mrs. Chase, as it was merely for his accommodation. Subsequently it was purchased from him by Renwick, at the large discount mentioned in his answers. Such a transaction is usurious; and, therefore, on this claim, he is only entitled to the sum of $ 1306.12, with interest thereon, under the act of 1845.
The complainants' counsel have contended that the decision in Renwick vs. N. & J. Williams, Ex'rs of H. K. Chase, 2 Md. 356, should exclude any defense upon usury against this claim in the present suit. But although, in that case, usury was pleaded, there was no proof to sustain the plea, and no question on that subject came before the court. Their attention appears to have been confined chiefly to the question, whether proving a note to be an accommodation note, and its not being endorsed until over-due, will constitute a sufficient defence to the suit upon the note by the endorsee?
The claim of Banks, filed with his bill, has also been resisted as usurious. The affirmative of this charge by the defendants, rests upon them, under the act of 1845. And they have not sustained it by evidence which can enable [**68]  the court to decide, that less than the nominal amount of the note was paid for it, and how much less, so that under the 3rd section 

 [*236]  of the act, the court may ascertain the amount really due and decree accordingly.
The defendants' third objection is, that the claims are barred by limitations.
We need not decide whether the claims of Williams, Polk and Pitts, should be excluded under this defense, because without them there are debts enough to invalidate the deed, and because they were not decided upon below, but were expressly "reserved for further consideration." For these reasons we may also refrain from expressing an opinion as to the effect of the fourth and fifth objections so far as those claims are concerned.
In the case of McDowell, et al., vs. Goldsmith, 6 Md. 319, this court say: "We can express no opinion as to the last of these claims. The chancellor has neither allowed nor rejected it, but on the contrary, has reserved it for further directions."
Limitations cannot bar Elion's claim, as he obtained a judgment upon it against Mrs. Chase, on the 28th of March 1846.
The note held by Mills is dated the 30th of July 1844, payable [**69]  two years after date. He filed the same on the 7th of July 1849, with his petition, asking to be admitted as a co-complainant; at which time the note had not been due three years. And in their second exception, whilst the defendants are insisting upon the statute of limitations as barring other claims, they except the claim of Mills from its operation, in express terms.
Renwick was not an original complainant, but came in as a party by filing his petition and claim on the 20th of March 1850, which was subsequent to the filing of the answers to the bill. These answers, relying upon limitations, can have no effect upon this claim subsequently coming in. Speaking in regard to persons who were made parties complainants after the filing of the original bill in the case of McDowell vs. Goldsmith, 2 Md. Ch. Decisions 390, it is true the chancellor says: "Notwithstanding, however, the claims of these parties have been proved, the plea of limitations, relied upon in the answer, must bar the remedy upon them, unless the fraudulent character 

 [*237]  of the transaction saves them from the operation of the statute." But the statement of the case shows, that the parties, who came in [**70]  after the filing of the original bill, and the answer to the same, filed an amended bill. Then followed an agreement that the amended bill should be treated as an amendment "filed by the whole of the parties, originally complainants, and subsequently made so, or applying to be made so, and that the answer of the defendant already filed, should be taken as an answer to said amended bill." Under this agreement the chancellor might well consider the plea of limitations, contained in the answer, as applicable to the claims of those who became parties after the original bill had been filed.
As against Renwick's claim, the statute of limitations has not been relied upon in either of the exceptions filed by the defendants, as contained in the record. We say as contained in the record, for the purpose of distinguishing these exceptions from objections spoken of as contained in the statement or brief of the defendants.
As this claim cannot be affected by the plea of limitations in the answers of the defendants, and as it has not been resisted by such a plea in the exceptions, it is not subject to such a defense.
When Banks' claim, "D. B. B., No. 1" or "No. 5," was [**71]  filed with the bill, which was on the 29th of July 1848, it had not been barred by limitations, three years not having expired since it fell due.
The fourth objection, stated in the brief, alleges "fraud, imposition and undue influence practiced upon a very aged woman." During the argument, we understood this objection as designed to apply exclusively to the notes given to Barney and endorsed by him. The proof, in our opinion, fails to establish a participation, on the part of the endorsees, or any of them, either separately, or in connection with Barney, in the use of means for the purpose of defrauding, imposing upon, or exerting an undue influence over Mrs. Chase. The evidence shows they purchased the notes from the payee, but how, or in what manner they were instrumental in enabling 

 [*238]  him to obtain them from the maker, or that prior to, or at the time of executing the notes, the endorsees had any communication or intercourse with her, verbally or in writing, either directly or indirectly, there is not the slightest proof. And indeed it would seem to be strangely inconsistent with the usual course of human transactions, to suppose that the allegation contained in this [**72]  objection is true, with reference to participation on the part of Renwick as to his note, or of Banks as to his, No. 5, when it is certain that the former did not obtain his until several years after it fell due, and after the death of the maker; and that Banks became possessed of his when over-due.
That Barney had great influence over his grandmother there can be no doubt. Her extravagant liberality to him is conclusive evidence of this. And it would seem to be equally certain, that his influence was the consequence of her unbounded affection for him. Whether it be true, as alleged, that for the purpose of procuring any of the notes mentioned in the preceding list of claims, Barney resorted to other means than his influence, arising from her affection for him, the evidence furnishes no satisfactory proof.
Mrs. Chase, it must be recollected, although ninety years of age, still had a sound mind, and was very capable of transacting business. It would be a dangerous principle in a commercial community, to hold, in the absence of proof of fraud and imposition, that if a person in her condition sees fit to execute notes for a considerable amount, for the accommodation of her grandson,  [**73]  which are negotiated, even when over-due, such notes may be invalidated, because it is proved the payee had great influence over the maker in consequence of her strong affection for him.
The proof does not convince us that the fourth objection ought to be sustained.
The fifth objection insists upon an estoppel against the claimants, because they claimed under the deed to Talbott, and received their dividends. The 2nd exception of the defendants, in the record, is that on which this objection is based, and is as follows:

 [*239]  "To the claims filed in this cause, as follows, viz: The note and account of Nathaniel Williams, the claim of Sarah Polk, the claim of Charles H. Pitts, the claim of H. Cohen Elion, respectively marked: 'Complainant's Exhibit, No. 1,' 'Sarah Polk, Complainant's Exhibit, No. 2,' 'Charles H. Pitts, Complainant's Exhibit, No. 3,' 'H. Cohen Elion, Complainant's Exhibit B, No. 3;' and also to the note of $ 300 held by Mills; and in making this exception, the defendants insist, that each and all of said claims, except that of said Mills, on which judgment was recovered, are barred by the statute of limitations, more than three years having elapsed from the [**74]  maturity thereof, respectively, before the filing of them in this cause; and they further except to the same, because dividends were paid on all said claims under the trust to W. A. Talbott, and the holders thereof are thereby estopped from impeaching the deed of the 2nd of August 1844."
W. A. Talbott filed a statement showing what persons filed claims and received dividends under the deed of trust from Mrs. Chase to him, dated the 28th of January 1845.
The parties agreed to receive as evidence this statement, to the same extent as if the matters therein certified had been proved under the commission. They, at the same time, "admitted that the notes dated the 30th of July 1844, filed in this case before the same was set down for hearing, were not filed for dividends under Talbott's deed of trust, and received no dividends under said deed."
Under this agreement it will be seen, that the claims of Mills, Renwick and Banks, upon their respective notes, dated the 30th of July 1844, were neither presented for dividends, nor received any, under the deed to Mr. Talbott. This 5th objection, therefore, cannot operate upon them. Nor can Elion's claim be affected by it, as the statement of [**75]  Mr. Talbott does not show any dividend was paid or demanded upon that debt.
The defendants claim the right to use the note for $ 4000, from Barney to his grandmother, as a set-off against the notes given by the latter to the former, inasmuch as those were accommodation notes, and endorsed when over-due.
In some of the States of the Union, the doctrine thus insisted 

 [*240]  upon has been maintained, but in others it has not. In Chandler vs. Drew, 6 N.H. 469, the question was presented, and after full consideration the court decided against the right of setting-off a claim between the payee and maker, in a suit by the endorsee against the maker, upon an accommodation note endorsed when over-due. A similar decision was made in Burroughs vs. Moss, 10 Barn. & Cres. 558. And those two cases would seem to be sustained by the doctrine announced in Renwick vs. Williams, 2 Md. 356 & 364.
It has been said, that as the notes dated the 30th of July 1844, were all accommodation notes, and were negotiated after the execution of the deed of August 1844, they did not create any debts or liabilities until negotiated, and consequently [**76]  they were not antecedent, but subsequent claims. This position is based upon the principle which has been established in reference to the nature of an accommodation note before it is discounted, when considered with regard to a charge of usury, alleged to have arisen at the transfer of the note by the payee to the first endorsee. Whilst it remains in the hands of the payee the authorities speak of it as not being available, because he cannot maintain a suit upon it, and when passed to the endorsee he is said to be the first holder.
Indeed, in Munn vs. The Commission Company, the court go so far in speaking of the character of such a note before it is discounted, as to say, it is nothing more than blank paper. But we do not concur in the correctness of such language to its full extent. That there is no absolute legal liability whatever upon the maker, which can be enforced against him by any person, until the note is negotiated, there can be no doubt. But it would seem to be equally clear of doubt, that executing the note and delivering it to the payee, with authority to get it discounted, must create a contingent liability on the maker, which will become absolute so soon as it [**77]  passes into the hands of the party to whom it is regularly endorsed for value. Supposing, however, there is not even such contingent liability prior to the first endorsement, still some rights of the parties, after the note is discounted, are to be controlled by its date, 

 [*241]  and not exclusively by the time of the endorsement. For instance, if the note be payable ten days after date, and should be discounted three years and twenty days afterwards, when would limitations begin to run? Would it be from the time it fell due by the terms of the note, or from the endorsement, because it only then ceased to be blank paper, and became an effective note or cause of action? We imagine the statute would bar a recovery upon any suit commenced more than three years after the time prescribed in the note for its payment, no matter when discounted. And still it is a general rule, that limitation does not commence until there is a cause of action. If we are right in reference to the subject of limitations, the note, prior to endorsement, is not blank paper in every respect. And if the date may be regarded as regulating the subject just referred to, why may it not likewise be considered as [**78]  having an effect, if not otherwise, by relation from the endorsement, when the question is, as to whether a voluntary conveyance is void against creditors?
Again, if such a note as we are considering is executed and not discounted until after the maker's decease, can it be doubted that it is his note, and a valid claim against his estate? Will it be seriously contended, that because it had no legal efficacy until after the maker died, the negotiation after the death could not then give the note vitality, so as to create a claim against a dead man, when that claim was nothing more than blank paper during his life? We suppose the appropriate response to such questions would be, that the note created no liability from the maker to the payee, but its execution imposed upon the former a contingent liability to whoever might become an indorsee thereof for value. And when the note is discounted, the contingent responsibility is rendered absolute, and, as between the maker and endorsee, it will be regarded as a valid claim from its date against the former.
Formerly the claim of an accommodation indorser or other surety, was not one which he could prove under a proceeding in bankruptcy or [**79]  insolvency against the principal; and for that reason the former could sue the latter after paying the original claim subsequently to the discharge of the latter. At least 

 [*242]  such was the law in England and in Maryland, until changed by recent legislation. The doctrine on which the former decisions were based, is, that the surety had only a contingent or possible claim, which was not a debt until it became one by his paying the original claim for the principal.
Notwithstanding this, still we find the authorities holding, that when the question is, whether a voluntary conveyance is void as to creditors, the contingent claim of a surety against his principal, the grantor, will be considered as having the effect of an antecedent debt.
In 1 American Leading Cases, 57, (Ed. of 1847,) it is said, "The statute, 13 Elizabeth, ch. 5, protects creditors and others; and a liberal construction in allowing to persons who are or might be injured by a fraudulent conveyance, the character of creditors under this statute, has always prevailed. As to rights from contracts, any one liable upon a contract, express or implied, though only contingently, is a debtor from the [**80]  time that the liability is entered into; accordingly, a surety is a creditor of the co-obligor or co-sureties, from the time that the obligation is entered into; and those interested in an official bond, are creditors of the surety from the time that the bond is executed by him; the guarantee of an assigned judgment is a creditor of the guarantor from the time that the guaranty is given." Several cases are referred to in their notes, in support of what the authors have thus said.
In Pennsylvania, it has been held that a grantor's liability as accommodation indorser, may be used to show indebtedness at the time of a conveyance alleged to be fraudulent, though the note was not then dishonored. 4 Barr. 178, Hamet vs. Dundass.
The defendants have contended, that although the notes of the 30th of July 1844, are dated prior to the deed, still, being accommodation notes, they, or at least such of them as were discounted when over-due, and with notice of the deed to the indorsees, cannot be used to impeach that instrument. It is, however, well settled, as may be seen in Renwick vs. Williams, that accommodation notes may be negotiated when over-due. It is true, they are to be [**81]  taken subject to certain equities of the 

 [*243]  maker, but their being accommodation notes is not, of itself, a defence against them in the hands of the indorsees. And, in regard to notice of the deed, it may be said, if the indorsees had knowledge of its existence, they likewise knew it was executed after the date of the notes.
Considering the language and design of the statute of Elizabeth, and the authorities in regard to the present question, we think the claimants upon the notes dated anterior to the deed, although discounted subsequently, whether before or after maturity, should be regarded in the light of antecedent creditors. But in reference to the effect of those claims upon the deed, it is a matter of little importance whether they are held to be antecedent or subsequent.
If a voluntary conveyance is made with a view or expectation of becoming subsequently indebted, and, in accordance with such view or expectation, debts are contracted, those who thus become creditors may avoid the deed, although their claims had not, at its date, even a contingent existence. 1 Amer. Lead. Cases 55; Parish, et al., vs. Murphree, et al. 13 How. S. C. Rep. 99.
On account [**82]  of the following claims, exclusive of any others, we think the deed of 1844 may be held void:

________________________________________________________________________________

H. C. Elion's note of the 2nd of July 1844, and	
   the judgment upon it,	$ 350 00	
Mills' note, dated the 30th of July 1844,	300 00	
Renwick's note, same date, for $ 2,000, reduced by	
   usury to	1,306 12	
Banks' note, dated the 30th of July 1844, Exhibit	
   D.B.B., No. 1, or No. 5,	2,000 00	
	$ 3,956 12	
________________________________________________________________________________

Elion's was certainly an antecedent debt. And the three notes, dated the 30th of July 1844, although accommodation notes, and negotiated subsequent to the deed, still they may be used to avoid it. For only three days before its execution, these notes were given by Mrs. Chase to her grandson. Knowing, as well as she did, from sad experience, his pecuniary condition and his general habits, it is not possible she 

 [*244]  could have entertained the least hope that he would not transfer the notes, or that he would ever take them up, after they had been transferred. She, therefore, must have executed the conveyance with the confident expectation of being required to pay these notes.
The annual value of Mrs. Chase's whole estate, at the date of the deed, [**83]  according to the estimate of the defendant's own counsel, as set forth in their statement, amounted to $ 4137.17, after deducting but $ 200 for her support. If the deed should be held valid, then her life-interest in the property thus estimated, and but one-half of the rent of the lot called "Newington," and one-half of the ground-rent of $ 43.50, after her decease, constituted all the means retained by her, after executing the deed, with which the above stated claims were to be paid.
When the means of paying such an amount of claims were to depend, in a very great degree, upon the life interest of Mrs. Chase, then over ninety years of age, in property, the estimated annual value of which exceeds the claims but a mere trifle, we cannot consider her as being, at the date of the conveyance, in such prosperous circumstances that her settlement should be regarded as a reasonable provision for her family, in her then condition, leaving no reasonable doubt of her still possessing ample means to pay all claims, for the payment of which she was bound to make abundant provision.
The Bible informs us that "The days of our years are three score years and ten; and if by reason of strength they [**84]  be four score years, yet is their strength labor and sorrow; for it is soon cut off, and we fly away." The great uncertainty of life, is necessarily much increased at ninety; and if this deed should be sustained, it would be virtually allowing Mrs. Chase, at that advanced age, to make her creditors insurers of her life, without their consent.
Although she lived some four years after making the deed, and, during that period, her life-estate may have yielded sufficient funds to have paid all her debts, and the liabilities for which she was bound to make ample provision at the date of the deed, still that instrument cannot be relieved from the effect 

 [*245]  of the imputation of fraud at its date, in regard to those debts and liabilities, if they have not been actually paid; and it is not alleged they have.
All the judges sitting in this case concur in what has been said thus far. What follows, in relation to the rights of subsequent creditors, only expresses the views of the judge by whom this opinion is written.
The deed being declared void, on account of the claims which have been specified, it becomes necessary to ascertain whether the creditors whose claims originated after [**85]  the date of the deed, can come in.
Upon careful examination of the authorities, and due consideration of the statute, I think that whenever a voluntary deed is held to be void, because fraudulent as to creditors, either for actual fraud or on account of the legal inference of fraud in the absence of proof showing a fraudulent intention, subsequent creditors will be let in, although there may not have been fraud in fact as to them.
In Richardson vs. Smallwood, 4 Cond. Eng. Ch. Rep. 265, (Jacob, 552,) it is said by Sir Thomas Plumer, as Master of the Rolls, "If it be once shown that it is a deed which, as against any of the creditors, cannot stand, then the property becomes assets, and is applicable to the payment of debts generally; and all the creditors come in at whatever times their debts may have arisen. That is decided."
In Reade vs. Livingston, whilst giving his views in reference to the rights of subsequent creditors, Chancellor Kent thinks they are let in only in particular cases, but in enumerating such particular cases, he states one to be, "where it is requisite to interfere, and set aside the settlement, in favor of the prior creditor." He refers to the [**86]  note in 12 Ves. 156, as showing that in Montague vs. Lord Sandwich, Lord Rosslyn held, that if a settlement be affected as fraudulent against creditors who were such at its date, the subject is thrown into assets, and all subsequent creditors are let in.
This portion of the Chancellor's opinion was not under consideration in our Court of Appeals when they refused to adopt his doctrine, that the inference of fraud arising from the mere 

 [*246]  fact of indebtment, is sufficient to invalidate a voluntary deed at the instance of a subsisting creditor, without regard to the grantor's means of paying.
In Iley vs. Niswanger, 1 McCord's Ch. Rep. 518, the second question considered by the court is, whether a voluntary transfer, if not void as to subsequent creditors, yet if set aside in favor of subsisting creditors, shall be held void in toto, so that subsequent creditors may be let in? In reference to this question the court say: "But the decree may be supported on the second ground. Chancellor Kent, in the case above alluded to, lays it down as a settled rule, that when a deed is set aside by prior creditors, subsequent creditors are entitled to come [**87]  in." The court then refer to what has already been stated as having been held by Lord Rosslyn in Montague vs. Lord Sandwich.
On page 523, of 1 McCord, it is decided, and I think correctly, that notice of the conveyance to a subsequent creditor, will not prevent him from coming in, because when once the deed has been set aside as fraudulent, so far as creditors are concerned, it is as though it never existed, consequently notice to the creditor can make no difference.
It is true that the correctness of the note in 12th Ves., 156, as to the opinion of Lord Rosslyn in regard to subsequent creditors being let in, is questioned by Judge Story, in his 1st Vol. of Equity Jurisprudence, note 2 to sec. 361. The reporter, however, not only states what was the opinion but adds, "This was clearly held by Lord Rosslyn in Montague vs. Lord Sandwich." This statement of the reporter is treated as correct by Chancellor Kent in Reade vs. Livingston, 498, as also by the court of South Carolina in Iley vs. Niswanger, 522.--And although Mr. Atherly (Marr. Sett., marg. page 213, note 1, in 27 Law Lib.,) disputes the soundness of the decision, he [**88]  does not even intimate a doubt, as to its being correctly reported in the note. The case it seems is nowhere reported at large, but was decided in July 1797.
The doctrine contained in this note is adopted by the Chancellor in 2 Bland's Rep., 35, Kipp vs. Hanna. He refers to the note, with other cases, as sustaining him in saying, "But it has also been long well established, that where a voluntary 

 [*247]  conveyance has been vacated for the benefit of those who were creditors at the time, all subsequent creditors may be let in to participate of the funds." In that case the Chancellor let in the subsequent creditors, although he held that they, alone, could not have originated and sustained a bill for vacating the deed. If, on this point, he is to be understood as holding that, under no circumstances, subsequent creditors can originate and sustain a bill for vacating a voluntary deed, I do not concur with him.
In Ingram vs. Phillips, 5 Strobhart's Rep., 206, the court say, "The law certainly is, that one who is not indebted may give away his property, and that the gift shall be valid against the donor and all persons. But if the donor be indebted beyond his means [**89]  of payment, the gift is a fraud against his creditors, and void as to them. In such case, even if no dishonest intention can be imputed to the donor, the gift will be set aside in favor of creditors. If it be void against prior creditors, it is void as to all creditors; for by the fraud against some, the gift is void as to all. When a person is indebted, having made a voluntary deed, the property shall still be considered a part of his estate. If a deed is fraudulent as to subsisting creditors, the subject is thrown into assets, and all subsequent creditors are allowed to participate in the distribution."
In Thompson vs. Dougherty, 12 Serg. & Rawle 458, it is said: "The law making the settlement void as to antecedent debts, lets in the subsequent creditors on the estate conveyed. If the settlement is void as to one set of creditors, it is void as to all." See, also, Walker vs. Burrows, 1 Atk. 94. Ede vs. Knowles, 2 Younge & Collyer N. R., 172, 178.
It has been supposed that our registration laws should produce some change in the principles regulating the rights of subsequent creditors, as those principles were first established in England when [**90]  no general registration laws there prevailed. But such laws exist in most, if not in all, of our sister States, and yet no decision in any one of them has been cited, tending to show that such laws, upon the ground of notice, or on any other grounds, should be considered as rendering it proper to change, or in anywise to modify or alter the principles relating 

 [*248]  to the rights of subsequent creditors, which are recognized in the English and American authorities, which have been referred to on this subject.
These authorities are very decidedly in favor of the right of subsequent creditors to be let in, whenever a voluntary conveyance is set aside at the instance of creditors who are entitled to a decree for that purpose. And this, upon principle, would seem to be the proper construction of the statute. It has long since been correctly held that the Statute of 13th Elizabeth does not extend to voluntary conveyances, merely as such, but only makes them void as to creditors, when fraudulent. Any instrument, therefore, which, under the provisions of the statute, is void as to creditors, must be fraudulent. The courts have drawn a distinction between fraud in law and [**91]  fraud in fact. Either, however, under some circumstances, will avoid a voluntary deed; but still, in every case when held to be void, it is so because fraudulent, within the meaning of the statute; the design of which is to prevent any such instrument from operating injuriously upon the creditors of the grantor. In providing for their protection, the language is general. It certainly is not restricted or limited by any particular or special allusion to those who may be such at the time of the transaction. When, therefore, at the instance of creditors, a deed is held to be void, in regard to them, because fraudulent in law, although it may not be so in fact, still it is rendered void because the statute denounces such conveyance as fraudulent against creditors. And if void because fraudulent as to some, the general language of the statute would seem to make it so in regard to all. This interpretation is advocated by Mr. Atherly, marg. pages 215 to 218. But by referring to him as authority for such a construction, I do not adopt his views, in holding that mere indebtedness at the time of the conveyance, without regard to the amount of the property conveyed, and the ability of [**92]  the grantor to pay his debts, will render a voluntary deed void, as fraudulent against prior and subsequent creditors also. Such doctrine is at variance with the decision in Worthington & Anderson vs. Shipley. When, however, according to the principles of that case, the debts 

 [*249]  and the condition of the grantor are such as to render his deed void, it is held void because it does, or may, hinder and delay creditors. Should these debts remain unpaid until the decease of the grantor, and in the meantime other debts are contracted, and the estate, exclusive of the property conveyed, is insufficient to pay all, (as is the fact in the present case,) surely the subsequent creditors are creditors hindered and delayed by virtue of the deed, contrary to the spirit and design of the statute. Why then should they not be let in under a proceeding at the instance of creditors for setting aside a conveyance, declared by the statute void against creditors, without specifying any particular class of them, other than such as "might be in anywise disturbed, hindered, delayed or defrauded?"
A majority of the court, however, think the subsequent creditors, in this case, are not entitled [**93]  to come in, although the deed is declared void; it is, therefore, unnecessary for me to examine the various reasons which have been urged by the appellants, why the subsequent claims before us should be excluded, even were this a case in which subsequent creditors, having valid claims, might be let in.
I think with my brethren, that, without reversing or affirming the decision below, the case should be sent back for further proceedings, under the act of 1832, ch. 302.  

DISSENTBY:
LE GRAND; TUCK 

DISSENT:

By Chief Justice LE GRAND and Justice TUCK:
We assent, for the most part, to the opinion of our learned brother. He has very fully and accurately defined the law applicable to the very many questions involved in the case, in all of which, with but a single exception, we fully concur. We dissent, however, from that portion of the opinion which recognizes the right of the creditors, who became so subsequently to the execution of the deed to the Messrs. Williams, to come in for a distributive share of the assets of the estate conveyed by that instrument.
We do not deem it necessary to review the cases which sanction the doctrine announced by our brother: it is sufficient we should [**94]  acknowledge that they sustain it fully. But, in our opinion, those cases are not binding on us, and are in 

 [*250]  direct conflict with the policy and operation of our registration acts. The whole seems to be deduced from a dictum of Lord Hardwicke, in Walker and others vs.  Burrows, 1 Atkins 93, and another case in England, at a time when there was no registration system in existence in that country. We have no doubt that subsequent creditors, where there is fraud in fact, have a right to come in; but we cannot comprehend how a person who, at the time of becoming a creditor, is aware of the existence of a deed, can, in any just sense, be considered as "disturbed, hindered, delayed or defrauded," by it. It seems to us to be a contradiction in terms to say, that a person is defrauded by an instrument when he deals with a perfect knowledge of its existence and of its effect. If our registration laws have any operation, they certainly do, as they were designed, give notice to all the world, so that there may be no deceit practiced upon any one. If registration laws do not give notice to the community which will bind it, then they are of no use whatever,  [**95]  for without registration deeds would be binding inter partes. In the case of the Mayor & City Council of Balto. vs. Williams, reported in 6 Md. 235, Baltimore county court sustained this very deed, in opposition to the English construction placed upon the Statute of 27th Elizabeth, on the ground that the registry acts of this State imputed to the second grantee notice of the first deed, and that he could not be said to have been defrauded. We do not perceive why the same doctrine should not apply to the Statute of 13th Elizabeth. Although this court did not deem it necessary, in words, expressly to affirm or reject this part of the opinion of the county court, we entertain no doubt that if the decision of the case had required it, the doctrine would have been fully sustained.
The English doctrine, if applied here, would (as was said in that case of purchasers) permit a subsequent creditor to be knowingly instrumental in disappointing just and honest expectations, based upon a voluntary deed or settlement, unaffected by the slightest fraud, in fact, at the time of its execution.
The view which we have taken, we believe, is supported by [**96]  the language of the statute, and in conformity with the 

 [*251]  principles of justice, and inasmuch as we are not trammelled by any decision of the Court of Appeals of this State, we feel at full liberty to pronounce it as the law, as it should be in fact, with us. In confirmation of the right reasoning on which it rests, we refer to Section 361 of the 1st Volume of Story's Equity Jurisprudence.
In these observations we wish to be understood, not as denying the right of subsequent creditors to invalidate a fraudulent deed when made with the intention and design to defraud those who should thereafter become creditors. Such creditors would be in the same condition as those whom we have referred to as having the benefit of the principles governing cases in which there is actual fraud. In this case, however, we do not believe there was any intention on the part of Mrs. Chase to commit any fraud whatever, on existing or subsequent creditors. We concur with our brother in returning the case to the circuit court, under the act of 1832, so that the rights of parties may be definitively settled, according to this and his opinion.
Cause remanded, under Act of 1832, chap.  [**97]   302.  

28 of 47 DOCUMENTS 

HIRSH ROSE and HERMAN GAUSS, vs. SAMUEL BEVAN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 466; 1857 Md. LEXIS 10 

JUNE, 1857, Decided 

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

This is an appeal from an order granting an injunction and appointing a receiver, passed by the court below, (LEE, J.,) upon a bill filed by the appellees against the appellants. The allegations of the bill are sufficiently stated in the opinion of this court. The mortgage from Gauss to Rose, dated the 1st of April 1854, referred to in the bill and exhibited with it, conveys all the stock in trade and household and kitchen furniture, in the house and store occupied by the mortgagor, "and also all other property and effects which may hereafter be brought into said building by the said Gauss, or may be substituted by him in lieu of that hereby mortgaged." The defendants, after filing their answers, appealed.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A bill, alleging that the complainants had recovered judgments against one of the defendants, on which executions had been issued and levied upon certain goods in a store, and that the other defendant interposes a prior mortgage of these goods to prevent a sale thereof to satisfy the judgments, and that the property so mortgaged and levied upon, is more than sufficient to pay the mortgage, and that the mortgagor has no other property out of which the judgments can be satisfied, and has, since the execution of the mortgage, been permitted to use and dispose of the goods, and that part of the goods levied on are not the same as those mortgaged but others, and that unless the goods levied on be taken from the possession of the mortgagor they will be disposed of and the complainants subjected to an entire loss of their claims, makes a good case for an injunction restraining the mortgagor from selling the goods, and the appointment of a receiver.

A mortgage of a stock of goods in a store, "and also other property and effects which may hereafter be brought into said building by the mortgagor, or may be substituted by him in lieu of that hereby mortgaged," conveys to the mortgagee no interest in, or lien on, such goods as were subsequently purchased out of the proceeds of the sale of those mortgaged.

A mortgagee, before he has the right to foreclose, has the right in case of apprehended danger or loss of the mortgaged goods, to have a receiver appointed.

Though a debtor's equitable estate in personal property cannot be seized and sold under a fi. fa., yet a creditor may file his bill and obtain a decree for the sale of the property absolutely and pay off the incumbrances, and then satisfy his own claim. 

COUNSEL:
John J. Snyder for the appellants, argued:

1st. That no court of equity has a right to issue an injunction and appoint a receiver, or do either on such a bill as the present, and especially has not the right, before answer, to appoint a receiver. But even if it could have so acted before answer, the vague and indistinct allegations of the bill, dealing only in apprehension or conjecture,  [**2]  not even imputing a fraudulent intent, or purpose, or combination to defeat any rights of the complainants, could not warrant either receivership or injunction. The mere unexplained "belief," without setting forth the facts upon which it is founded, is not sufficient. 4 Gill, 382, Warfield vs. Owens. The cases of Clagett vs. Salmon, 5 G. & J., 348, and Harris vs. Alcock, 10 G. & J., 251, do not, it is respectfully submitted, sustain the propositions for which they are cited by the other side. In neither of these cases was a receiver appointed, or indeed asked, and the injunction granted in the former case was upon the express allegation of a fraudulent purpose to defeat the complainant's claim.

2nd. That the court erred in ordering a receiver and injunction, because, as alleged in the bill, there was another suit then pending in the same court embracing the same subject. In the suit of Rose against these complainants, prohibiting them from proceeding with their writs of fi. fa., the rights of both parties to this property would, or could have been, adjudicated and determined. Besides the indebtedness of Gauss to the complainants was contracted long after the execution of the mortgage [**3]  to Rose, and which being of record, they are presumed to have had notice of its existence. At the time of filing this bill, Rose himself could not have successfully invoked the interposition of the court for the sale of the property, because his mortgage debt was not then due. By what right then can the complainants claim to have the property sold? There is nothing in the bill which will authorise this extraordinary interference.

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

1st. That the levy of the execution set out in the bill gave the complainants an equitable lien upon the property mortgaged, and the mortgagee having asserted his mortgage claim, no sale could be made to satisfy the execution save by a decree of a court of equity. The complainants, therefore, were entitled to have a decree, to pay first, the mortgage debt, and then their executions, the averment in the bill (which on this appeal must be taken to be true) being, that the property was more than sufficient to pay the mortgage and execution debts. 10 G. & J., 251, Harris vs. Alcock.

2nd. That as the mortgagee allowed the mortgagor to remain in possession and dispose of the property, and [**4]  interposed his mortgage to prevent the possession of the mortgagor from being disturbed, and as the bill avers that the mortgagor had no other property to satisfy the executions, and that the property would be entirely made way with and disposed of, and the proceeds applied to other uses than paying the complainants' debt, the issuing of the injunction and appointment of a receiver was the only mode by which the rights of the complainants could be preserved. 5 G. & J., 348, Clagett vs. Salmon.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*469]  LE GRAND, C. J., delivered the opinion of this court.
This appeal is taken from an order of the Superior Court of Baltimore city, sitting in equity, granting an injunction and appointing a receiver, on a bill filed by the appellees against the appellants.
The material averments of the bill may be thus stated: The appellees sold, at various times, to the appellant, Gauss, certain dry goods for which, from time to time, they took his promissory notes, which not being paid on their maturity, suits were brought before a justice of the peace, and judgments obtained thereon, amounting in [**5]  number to five, whereon writs of fi. fa. were issued, and levied on the goods of the said Gauss. The bill then alleges that the appellant, Rose, by virtue of a mortgage executed to him by Gauss, claims to prevent the execution and sale of the goods levied upon to satisfy the judgments of the appellees; that the property claimed to have been mortgaged, and in fact levied upon, is in value more than sufficient to satisfy the mortgage; that the appellant, Gauss, has no other property out of which the judgments of the appellees can be 

 [*470]  satisfied. The bill further avers that since the execution of the mortgage the appellant, Gauss, has been permitted to use and dispose of the goods mortgaged to Rose, and that a part of the goods levied on are not the same goods as those mortgaged, but others; that if the goods levied upon be not taken from the possession of Gauss they will be disposed of, and the appellees subjected to an entire loss of their claim. The bill asks an injunction to prevent Gauss from selling the property, the appointment of a receiver to take charge of them, and sale thereof to satisfy, after the payment of the debt, secured to be paid by the mortgage to Rose,  [**6]  the claim of the appellees. The bill undoubtedly makes a good case. Its averments, on this appeal, whatever may be the real state of the case, must be taken as true. Among other things it denies the property levied upon to be the same as that covered by the mortgage. If it be not the same, then, to the extent of the difference, the mortgagee has no right to interfere, or, if any portion be the result of purchases made out of the proceeds of sale of the goods mortgaged, he has no right, as to such portion, to interfere, he having no interest in, or lien on, the same.  Hamilton vs. Rogers, 8 Md. 301. The case of Clagett vs. Salmon, 5 Gill & John 314, establishes the right of a mortgagee, before he has a right to foreclose, in the case of apprehended danger, or loss of the goods, to have a receiver appointed, and the case of Harris & Chauncey, vs. Alcock, 10 Gill & Johnson 226, shows that, although a debtor's equitable estate in personal property cannot be seized and sold under a fieri facias, yet, a creditor may file his bill and obtain a decree for the sale of the property absolutely, and pay off the incumbrances, and [**7]  then satisfy his own claim. This is the case made by the present bill, and we therefore affirm the order appealed from and remand the cause for further proceedings.
Order affirmed and cause remanded. 

29 of 47 DOCUMENTS 

RICHARD B. DORSEY, Exc'r of WILLIAM H. DORSEY, vs. ARABELLA DORSEY, and ROBERT J. BRENT, vs. RICHARD B. DORSEY, Exc'r of WILLIAM H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 471; 1857 Md. LEXIS 11 

JUNE, 1857, Decided 

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

These two appeals were, by agreement, taken up and argued together. The record, in the first case, shows, that the appellant, Richard B. Dorsey, as executor of William H. Dorsey, filed his petition in the orphans court, alleging that he had in hand, as executor, $ 3503.49, applicable by law to the costs of administration debts and legacies, subject to an agreement between the counsel of Arabella Dorsey, and of the petitioner, filed in the case of Dorsey vs. Dorsey, decided by the Court of Appeals in 9 Md. Rep., 31, in which Arabella Dorsey was petitioner, and the appellant defendant; that acting in good faith, and not believing that under the will of William H. Dorsey, the said Arabella was entitled to more than a life estate in the property, and that if he paid over all the net assets in hand, to her, as her absolute estate, he would be responsible to other parties, the executor, with a view to the due administration of the assets, and the proper ascertainment of the rights of said Arabella, employed counsel, who filed his answer resisting her petition; that the orphans court decided against him, and ordered the assets, after all [**2]  proper deductions, to be paid over to said Arabella, from which order he appealed, but it was affirmed by the Court of Appeals; that he is now ready to pay over the net assets to said Arabella, but desires the court to allow him to pay to his counsel, Robert J. Brent, Esq., a reasonable fee, for arguing the case between him and the said Arabella, in the orphans court, and in the Court of Appeals; that it will be his duty as executor, to institute suits to recover a large sum of money, several thousand dollars, which he believes to be justly due his testator, from the firms of "Duvall, Keighler and Dorsey," and "John H. Duvall & Co.," and that the prosecution of this claim will involve considerable professional labor and trouble on the part of the counsel he may employ, and that it will be necessary to pay such counsel liberally in the premises. He then prays the court to decide, what cash fee should be now paid his counsel, for instituting these suits, and what shall be reserved for a contingent or further compensation, until a recovery shall be had on these claims.

The order of the orphans court in the former case, which was affirmed by the Court of Appeals, and the admissions [**3]  in the answer of the appellant, made in that case, are fully stated in the opinion of this court. The agreement of counsel, in relation to the former case, referred to in the petition, was also filed as an exhibit with it, but need not be stated.

The answer of Arabella Dorsey, the only party who by the former decision, is interested in the residue of the estate, admits the execution of the agreement mentioned in the petition, but denies that the executor had any right to employ counsel, and incur costs at her expense, to defeat her just claim to said residue, which was established both by the decision of the orphans court and the Court of Appeals. She alleges, that her claim was resisted by the executor, in part for the benefit of his wife; that an executor has no right to litigate questions for the benefit of third parties, at the expense of the estate, especially in a case like this, where, by the decision of both courts, it clearly appears, there was no probable ground for resisting her claim, and still less was there any ground for an appeal, after the decision of the orphans court against him; that by the true meaning of the agreement referred to, the entire balance of $  [**4]  3503.49, was to be paid over absolutely to her, without any deduction for costs and expenses or any thing else, and that the fund was actually placed in the hands of the counsel mentioned in the agreement, in order that it might be so paid over, on the decision by the court, of the question of ownership; that by the decision of the orphans court, the entire sum of $ 3503.49, without any deduction for costs, or any thing else, was ordered to be paid over to her, and this order was affirmed by the Court of Appeals, which decision is final. She denies that it is the duty of the executor, to institute the proposed suits against the firms mentioned in the petition. On the contrary, she avers such suits cannot be for the benefit of any one except the counsel employed; that she is entitled to any fund that may be so recovered, and that in fact, at this time, no money is due from these firms to the estate, because at his death the testator was largely indebted to them, and the moneys collected by them since, are not sufficient, on proper application and division among the partners, to pay the amount so due by the testator.

Two letters from W. H. Keighler are filed with the answer, showing [**5]  the financial condition of these firms to be as stated in the answer.

The orphans court ordered the petition to be dismissed, and from this decision the executor appealed.

In the second case, the petition was filed by Robert J. Brent, alleging his employment by the executor, as counsel in the case of Dorsey vs. Dorsey, and that he argued the same both in the orphans court and the Court of Appeals, and charges for his services, $ 200 in each court, and claims payment out of the assets now in the hands of the executor; that the executor has employed him to file one or more bills in chancery, for the settlement of the partnership accounts, of the firms mentioned in the petition of the executor, who has no funds in hand to pay him a fee, except the $ 3503.49, which he is about to pay over to the said Arabella, and he prays that his fees in the former case, and a reasonable fee for said bills in chancery, may be allowed by the court out of this balance.

The answer of the executor admits the allegations of the petition, and refers to the petition filed by him in the first case, and prays that it may be taken as part of this answer.

The orphans court ordered this petition [**6]  also to be dismissed, and from this decision the petitioner appealed.  

DISPOSITION:
Upon the appeal by the executor, order affirmed, with costs; upon the appeal by Brent, order affirmed, without prejudice and without costs.  

HEADNOTES:

In an amicable suit between an executor and a legatee, instituted for the purpose of determining the true construction of the will, and whether under it the legatee was entitled to the whole residue absolutely or for life only, the orphans court decided in favor of the legatee, and passed an order directing the executor to pay to such legatee the sum of $ 3503.49, then in his hands, and also any balance he may hereafter receive, after deducting proper charges and expenses. At the time this order was passed, the executor admitted that all the debts and expenses of administration, so far as they had then accrued, had been fully paid. Upon appeal by the executor, this order was affirmed by the Court of Appeals. HELD,

1st. That this affirmance definitively established the right of the legatee to the $ 3503.49, and the orphans court could not subsequently apply any part of this sum to pay counsel fees for conducting the case in which the order was passed.

2nd. That the executor ought to be allowed, out of any assets of the estate other than this sum, reasonable counsel fees for conducting the case in the orphans court, but not in the Court of Appeals; the judgment of the orphans court was necessary, and sufficient to protect him in the administration of the estate, and it was not his duty to appeal.

3rd. That no allowance whatever ought to be made to the executor, out of the estate, to pay counsel fees and costs for suits, proposed to be instituted to recover certain debts alleged to be due the testator, it appearing that such suits are unnecessary, and that their institution would be contrary to the wish, and detrimental to the interest, of the only party interested in the estate.  

COUNSEL:
No counsel appeared for the appellant in either case.

Geo. Wm. Brown for the appellee, argued:

1st. That both by the agreement of the parties under which the controversy in relation to the ownership of the residue of the testator's estate upon the true construction of his will, was instituted, and the decision of that case in the court below, and the appellate court, this sum of $ 3503.49 was directed to be paid over, absolutely and entirely, to Arabella Dorsey, the widow of the testator. The matter is res adjudicata, by the decision of both courts. If there were any deductions of, or charges against, this fund for counsel fees, they should have been set up in that case. It is too late to do so in any subsequent proceeding: interest reipublicae ut sit finis litium. Besides, the answer of the executor to the original petition of Arabella Dorsey, admits that all the expenses of the estate had been paid so far as they had accrued, which, of course, embraced the [**7]  expense of the answer itself, and he claimed that the entire balance, under his construction of the will, belonged to said Arabella for life only.

2nd. That the executor had no right to appeal to this court and charge for counsel fees on such appeal. Act of 1798, ch. 101, sub-ch. 8, sec. 5. 8 Gill, 285, Ex-parte Young. Dorsey's Test. Law, 93. 4 Gill, 55, Compton vs. Barnes. Hill on Trustees, 570, 572.

3rd. There is no proof before the court that the fees claimed were reasonable and proper under the circumstances, and, therefore, nothing to show that the orphans court erred in its decision.

4th. The suits proposed to be brought, and for which fees are claimed, are clearly unreasonable, and fees should not be allowed for them. The amount of such fees cannot be ascertained by this court, there being no proof in the record to show what they should be.

5th. Mr. Brent, in the case of Dorsey vs. Dorsey, before the orphans court, was, in fact, the counsel of the mother of the testator, as appears from the agreement filed in this case. She was the substantial party in interest, and the proceeding was for her use and benefit, and the name of the executor was used only for [**8]  the protection of her supposed rights. It was, therefore, incumbent on her to pay the counsel whom she had employed, and his fees cannot be charged against the estate.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*475]  BARTOL, J., delivered the opinions of this court in these cases:--1st. Upon the appeal by the executor:
By the order of the orphans court of Baltimore city, passed on the 6th day of October 1855, in a cause wherein Arabella Dorsey, (the appellee in this case,) was petitioner, and Richard B. Dorsey, executor of William H. Dorsey, (the appellant,) was respondent, it was ordered and adjudged, that the said executor pay over to the said Arabella the sum of $ 3503.49, which he then had in hand; and, also, that he thereafter, "from time to time, pay to said Arabella, 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."

 [*476]  On appeal to this court, that order was affirmed at the June term 1856. See 9 Md. 31. [**9]  
That suit was an amicable action, instituted in conformity with the agreement between the counsel of the parties, for the purpose of determining the true construction of the will of William H. Dorsey, and of ascertaining the rights of Arabella Dorsey, one of the devisees, In the answer of the appellant to the petition of said Arabella, filed in the said cause, it is stated, "that all the debts of said William H. Dorsey have been fully paid, and likewise the expenses of administration so far as they have accrued," that certain legacies had been paid, &c., and "that there remains a balance of $ 3503.49, and that the said balance constitutes, so far as he knows, the entire residuum of the estate of said William H. Dorsey," with the exception of certain unsettled balances alleged to be payable to said estate from the two firms mentioned in the will.
The petition of the appellant in this case, prays the court to allow him to pay out of said balance in his hands certain reasonable fees alleged to be due by him to his counsel, for services rendered in arguing said cause in the orphans court, and in the Court of Appeals; and also certain fees for professional services to be rendered [**10]  by said counsel in prosecuting suits, which the appellant considers necessary, for the purpose of recovering certain debts alleged to be due from said firms to the testator.
We consider that the prayers of the petition were properly refused by the orphans court.
The decision of this court, already referred to, affirming the order of the 6th of October 1855, was a final adjudication upon the question involved, which definitively established the right of Arabella Dorsey, (the appellee in that case,) to the said sum of $ 3503.49, the balance then in the hands of the executor, and the orphans court could not rightfully apply any part thereof to the payment of the alleged fees, even if they were established by proper proof to be due, and were adjudged to be payable out of the estate of William H. Dorsey.
In view of all the facts of this case, as presented by the record, this court is of opinion, that no allowance whatever 

 [*477]  ought to be made to the executor, out of any assets which may come to his hands, for the purpose of defraying the costs of suits proposed to be instituted, for the recovery of debts alleged to be due from the firms mentioned; because it is apparent that [**11]  such suits are unnecessary, and ought not to be instituted; and the more especially because it appears from the answer of Arabella Dorsey, who is the only person interested in the estate, that the institution of such suits would be contrary to her wish, and detrimental to her interest.
We are of opinion, however, that the appellant ought to be allowed out of any assets in his hands, or which may hereafter come into his hands, (other than the sum above mentioned,) for any fees which may be proved to be just and reasonable, paid by him to his counsel, for services rendered in the preparation and argument of the cause aforementioned, in the orphans court. The judgment of that court was necessary to protect him in the administration of the estate; and those costs were properly incurred by him.  4 Gill 55. But, beyond such allowance, it would be unreasonable and unjust to charge the estate. The expenses incident to the appeal are not properly chargeable upon the estate.
The judgment of the orphans court was a sufficient protection to the executor; it was not his duty to carry the case farther. If other persons were interested in seeking a reversal of the judgment,  [**12]  an appeal was open to them, or if the appeal was prosecuted for their benefit, the expenses incident thereto ought to be borne by them; it would be inequitable to charge the costs thereby incurred upon the estate of one, against whose wishes and interests the appeal was prosecuted.
Order affirmed, with costs.
2nd. Upon the appeal by Brent:
The decision by this court, of the case of Richard B. Dorsey, Exc'r of W. H. Dorsey, vs. Arabella Dorsey, at the present term, governs this case; and the opinion of the court therein filed is referred to.
The petition in this case seeks to charge the same fund in the hands of the executor, as is sought to be charged in the 

 [*478]  other case. But the right of Arabella Dorsey to the whole of said fund is res adjudicata.
We consider, however, that the appellee, (the executor,) should be allowed out of any other funds coming to his hands as executor, to the extent stated in the opinion to which we have referred, for reasonable and proper counsel fees, costs and expenses, incurred by him in the procurement of professional services in the case referred to in the petition, while the same was pending in the orphans court. We affirm,  [**13]  without prejudice and without costs, the order of the orphans court in this case; because to remand for further proceedings, would subject the parties to a useless expense, which may be avoided by the executor's filing his application for such an allowance.
This opinion is not to be understood as prejudicing any claim of the appellant against Dorsey individually, for any professional services rendered him in the Court of Appeals or elsewhere.
Order affirmed, without prejudice and without costs. 

30 of 47 DOCUMENTS 

THE GENERAL INSURANCE COMPANY OF MARYLAND vs. THE UNITED STATES INSURANCE COMPANY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 517; 1857 Md. LEXIS 16 

JUNE, 1857, Decided 

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

On the 16th of January 1834, William H. Freeman executed a mortgage to the General Insurance Company of a house and lot in the city of Baltimore, to secure an indebtedness of $ 15,000. This mortgage was executed under the provisions of the act of 1826, ch. 192, and acknowledged, but was not recorded until the 2nd of April 1834. On the 29th of March 1834, Freeman executed a mortgage to the United States Insurance Company of this same property, with other real estate, to secure payment of $ 80,000, which the instrument recites he owed to said company, "and hath promised to pay by three promissory notes, payable four, five and six months after date." This mortgage was also executed under the provisions of the act of 1826, and was recorded on the day of its execution. At the time these mortgages were executed Freeman held only an equitable title to the property, it having been originally sold for $ 10,000, by Shriver to Keener, who took a bond of conveyance therefor, paid $ 7000 of the purchase money, was put in possession, and subsequently sold it by parol to Freeman, who repaid the $ 7000, received possession in his turn, and agreed to pay the balance [**2]  of the purchase money due Shriver, which balance, however, was not paid when these mortgages were executed.

The property was sold under a decree in chancery passed upon a bill filed, in 1835, by the appellee, to foreclose its mortgage, the claim of the original vendor paid out of the proceeds of sale, and the present controversy is, which of these mortgages is entitled to priority of payment out of the balance of the proceeds, such balance being insufficient to pay either of them in full? The facts of the case are sufficiently stated in the opinion of the chancellor, reported in 3 Md. Ch. Dec., 381, and in the opinion of this court. From the order of the chancellor confirming the auditor's account, which allowed a preference to the mortgage of the appellee, and awarded the whole balance of the proceeds of sale to its payment, this appeal was taken.  

DISPOSITION:
Affirmed with costs.  

HEADNOTES:

Mortgages of equitable interests in lands are within the registry laws of this State; these laws were designed to avoid abuse and deceits by mortgages and pretended titles, and, for the protection of creditors and purchasers, should be construed so as to effect that end.

The mortgage first recorded is preferred, unless the mortgagee, at the time of its execution, had notice of the prior unregistered conveyance, and such notice must be by proof of actual knowledge, or circumstances sufficient to put the party upon inquiry; the case must be so clear as to satisfy the mind that to allow the preference would be a fraud upon the holder of the first deed.

Notice given to a director of an incorporated institution, privately, or which he acquires from rumor, or through channels open to all alike, and which he does not communicate to his associates at the board, will not bind the institution.

A mortgagor agreed to and did receive, as the consideration of a mortgage to an insurance company for $ 80,000, the company's insurance policies for that sum, and afterwards, by an arrangement with the president of the company, delivered to him $ 50,000 of these policies in exchange for his (the mortgagor's) own note and that of another party. HELD:

That having received what he agreed to take as the consideration of the mortgage, the mode in which he subsequently disposed of a part of the policies cannot affect the bona fides of the transaction at the time the loan was made.

Marshalling of assets is never made ex officio, nor at the suit of the debtor, but only at the instance of one creditor against another, and the creditor calling for it must show that his co-creditor can sustain no loss thereby, nor be in any way injuriously delayed, or have his claim subjected to any additional peril.

To authorise the appellate court to remand a cause under the act of 1832, ch. 302, the record must indicate that the ends of justice will be promoted by such further proceedings.

An auditor's report and account having been submitted by agreement, with a reservation of the right to except, and no exception on the question of marshalling of assets having been filed in the court below, the order ratifying the account cannot, on appeal, be reversed on that ground. 

COUNSEL:
S. T. Wallis for the appellant, argued:

1st. That the interest of Freeman, in the property in controversy, on the 16th of January 1834, was a mere right of action in equity, and not such an estate or interest in land as to require that a conveyance thereof, by way of mortgage, should be recorded in order [**3]  to be valid against third parties. The mortgage to the appellant, though not recorded, was consequently unaffected in its validity or priority by the recording of the subsequent mortgage to the appellee. Acts of 1715, ch. 47, sec. 8; 1766, ch. 14, sec. 2; 1785, ch. 72, sec. 11; 1825, ch. 203; 1831, ch. 205, sec. 3; 1831, ch. 304. Kilty's Report of Statutes, 249, 250. Act of 1810, ch. 160. 2 H. & J., 301, Hopkins vs. Stump. 1 Do., 532, Cheney vs. Watkins. 4 Do., 132, McMechen vs. Maggs. Ibid., 329, Woods vs. Fulton. 6 Md. Rep., 56, Alderson vs. Ames. Coote on Mortgages, 256, in 69 Law Lib., 72.

2nd. That the appellee, at the time of taking the mortgage of the 29th of March 1834, had knowledge, or notice equivalent to knowledge, of the existence of the mortgage previously executed to the appellant, and is therefore precluded from setting up, as against the former deed, any rights secured by the latter. 2 Hill, 461, Bank of the United States vs. Davis. 3 Do., 262, North River Bank vs. Aymar. 2 Md. Ch. Dec., 25, Ohio Life Ins. & Trust Co. vs. Winn & Ross. Story on Agency, sec. 104, note (b.)

3rd. That the consideration of the mortgage to the appellee is proven to have failed,  [**4]  and the appellant has a right, in the worst phase of the case, to the benefit of such failure.

4th. That the mortgage to the appellee conveyed a very large quantity of other property, besides that which is the subject of the present proceedings, and the appellee, in order to prove itself in a court of equity a bona fide purchaser for value, is bound to show that by a marshalling of the assets so mortgaged, the other property would not suffice to pay its debt. The decree should, at all events, have provided for the ascertainment of that fact.

5th. That a party purchasing a mere equitable title does so at his own risk, and by the mere fact that the title is altogether equitable, is affected with notice of all prior equities and takes subject to them. This doctrine applies with peculiar force to the present case, where the interest mortgaged was a mere right to sue in equity, lying altogether in parol, and not evidenced by any conveyance or instrument recorded. 3 Myl. & Keene, 581, Jones vs. Powles. 2 Sim. & Stuart, 472, Jackson vs. Rowe. 1 Brown's Ch. Rep., 353, Beckett vs. Cordley. 10 Watts, 13, Bellas vs. McCarty. 11 Sergt. & Rawle, 389, Chew vs. Barnet. 2 Watts, 459, Reed [**5]  vs. Dickey. 7 Barr., 165, Kramer vs. Arthurs. Ibid., 340, Sergeant vs. Ingersoll. 4 Dessau., 289, Snelgrove. vs. Snelgrove. 3 Strob. Eq. Rep., 134, Bush vs. Bush. 24 Miss. Rep., 229, Wailes vs. Cooper. 7 Cranch., 34, Shirras vs. Caig. 7 Pet., 252, Vattier vs. Hinde. 10 Do., 210, Boone vs. Chiles. 5 Gill, 481, Baynard vs. Norris. 7 Md. Rep., 315, Mills vs. Matthews.

J. V. L. McMahon for the appellee, argued:

1st. That though Freeman's interest in the mortgaged premises was but an equitable one, the appellee's mortgage made and recorded on the 29th of March 1834, is under our registry laws entitled to priority over the subsequently recorded mortgage to the appellant, in the absence of proof of such notice to the appellee at the time of its mortgage, of the prior unrecorded mortgage to the appellant, as will by law suffice to deprive the appellee of that priority. 6 Md. Rep., 52, Alderson vs. Ames. Act of 1825, ch. 203. 1 G. & J., 379, Hays vs. Richardson. 15 Penn. State Rep., 319, Russell's Appeal. The proposition contained in the appellant's fifth point, which concedes the necessity of registry, but yet maintains that, notwithstanding the first registry of the mortgage to [**6]  the appellee, and without notice in fact of the prior mortgage to the appellant, the mere fact that the title purchased by the appellee of Freeman was an equitable one, was in law and of itself, not merely notice of the rights of the outstanding legal title, as against Freeman, but also of the prior secret assignment by Freeman to the appellant, is at war with the express declaration of the registry acts, that the first recorded deed, as between two conveyances of the same title, shall have preference both at law and in equity, and would totally subvert, as to purchasers of equitable titles, the avowed, and in fact, sole object, of the registry laws, to protect them against prior secret conveyances to others of the same title; and would, in effect, render them entirely nugatory as to such purchasers. And, apart from these considerations, the fact that the title purchased by the appellee of Freeman was equitable, and the notice thereby of the outstanding legal title, was not, in law, notice of any thing but that legal title and the rights incident to it, as against Freeman, and especially not of the existence of any equity against Freeman, arising from his prior but unrecorded and secret [**7]  assignment of the same title to the appellant, and above all, not to affect a title perfected by its registration, and the notice of it thereby given. Act of 1825, ch. 203. 7 Gill, 361, Clabaugh vs. Byerly. 1 G. & J., 379, Hays vs. Richardson. 2 H. & G, 430, Hudson vs. Warner. 2 Johns. Ch. Rep., 443, Murray vs. Lylburn. Ibid, 479, Livingston vs. Dean. 2 Md. Ch. Dec., 37, Ohio Life Ins. & Trust Co. vs. Winn & Ross. 9 Barr. 403, Mott vs. Clark. 15 Penn. State Rep., 319, Russell's Appeal. 10 Watts, 13, Bellas vs. McCarty. White & Tudor, 71 Law Lib., 99 to 101. 1 Sch. & Lef., 96, Bushell vs. Bushell. Ibid, 137, Latouche vs. Dunsany. 2 Ball. & Beat, 299, Eyre vs. Dolphin.

2nd. That the fact of the notice relied upon to break in upon the registry laws and deprive the appellee of its priority under its first recorded mortgage, as guaranteed by those laws (whether it be of notice to the company or its agents) must be fully and clearly proved, so as to leave no reasonable doubt of its existence, and is not to be made out by mere probabilities, nor by mere inference or suspicion not rendering the fact certain. There was no such proof of any notice to the appellee, by the list or otherwise,  [**8]  nor any pretence of any notice to any agent to affect it, unless it be the alleged notice to Neff, and there is no such proof of any notice even to him. And if it were conceded that there was any such proof of notice to Neff, the notice to him, if any, was, at such time, and under such circumstances, as shown by the whole proof, that it was not, in law, notice to the appellee sufficient to deprive it of its priority. See the decision of the Chancellor in 3 Md. Ch. Dec., 386 to 389, and cases there cited. 2 Atk. 276, Hine vs Dodd. 4 Md. Rep., 231, Winchester vs. Balto. & Susq. Rail Road Co. 4 Paige, 136, Fulton Bank vs. Sharon Canal Co. 5 Denio, 337, Story on Agency, secs., 140, (a,) 140, (b,) note 3, 140, (c.) 9 Barr, 27, Custer vs. Tompkins Co. Bank, 23, Penn. State Rep., 440, Wilson vs. McCullough.

3rd. That there was no error in the order appealed from in not having ordered the marshalling of assets. The record shows, that after the chancellor's decision in favor of the appellee's priority the auditor's report was made, awarding the proceeds to the appellee, and this report was, by agreement, submitted for the chancellor's decision, without any application by the appellant [**9]  for the marshalling, by answer, petition or notice, in any stage of the cause; and on this submission the order appealed from was passed. The onus was upon the appellant, if it deemed that it had the right to have the marshalling, and that the marshalling would afford it any relief from our established priority, to ask the aid of the court for that object, and upon proof showing a case for marshalling, and there was no error in not awarding it when not sought for. But if such a point had been presented, there was no equity to deprive the appellee of its conceded prior right, under its mortgage, to these proceeds, or delay and hinder this prior right by throwing it over from these proceeds upon the other property mortgaged; except upon satisfactory proof that the other property was fully adequate to the payment of the whole mortgage debt due the appellee, and that it would sustain no prejudice by this proceeding. In this case there was not only no such proof, but on the contrary, by the showing of the case, the entire debt due far exceeded the estimated value of the entire property. And again, the claim to marshalling can only proceed upon the concession of our priority, and there was,  [**10]  therefore, no error in the only point decided below, the decision of our priority, which must therefore be affirmed.

4th. That the consideration for the mortgage to the appellee was good and valuable. It is proved that policies for the $ 80,000, for which the mortgage was given, were issued to Freeman, or agreeably to his directions. How he subsequently disposed of them, cannot affect the bona fides of the consideration which he agreed to take and actually received. But it is admitted by the agreement in the case, that of these policies so issued, $ 62,456 have been paid by the appellee in full, or received at full value in settlement with its creditors, and that the remaining $ 17,544 have been paid in, and received a dividend out the assets of the company.  

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

OPINIONBY:
TUCK 

OPINION:

 [*523]  TUCK, J., delivered the opinion of this court.
The chancellor correctly decided the two propositions, discussed in his opinion, filed on the 11th of April 1847, (3 Md. Ch. Dec. 381;) that is to say, that the deeds are within the registry acts, and that the appellant has not shown that the appellee had [**11]  notice of the deed of January 1834, when that of March following was executed.
The first of these questions has since been considered by this court, and determined in accordance with the views of the chancellor in the present case; and, after further consideration upon the authorities and argument presented at the hearing of this appeal, we see no reason to doubt the correctness 

 [*524]  of the decision then made.  Alderson vs. Ames, 6 Md. 52. The same doctrine was recognized in Watson vs. Bane, 7 Md. 117, where the right of a mortgagee of an equitable title, similar to the present, was established. See, also, 1 Johns. Ch. Rep. 394, Parkist vs. Alexander, where the chancellor, upon the words of the New York statute, said that it embraced mortgages of equitable titles. We consider the language of our registry acts equally as comprehensive, and that they must have the same application. They were designed to avoid abuses and deceits by mortgages and pretended titles, and, for the protection of creditors and purchasers, should be construed so as to effect that end. 1715, ch. 47, sec. 8. 1766, ch. 14. 1825,  [**12]  ch. 203.  15 Pa. 322. The present case shows the propriety of this interpretation. The mortgagor was at the time extensively engaged in speculation. His operations were of such a character as to cause daily changes in his property, and his pecuniary means. He had transactions with the appellant, which sufficiently indicated to that company the character of his business. They dealt with him, and advanced money on the faith of this property, which they permitted him to hold, even after the time limited in the mortgage for the payment of the debt, although it contained a power in the company to sell, under which the appellant might have proceeded, and thereby, most probably, have prevented the appellee from making advances on the same property. It does not appear why the deed was withheld from record. It would seem, however, from the execution and acknowledgment, that it was intended to have been recorded, because, if designed to operate only as the assignment of a right in equity, these formalities need not have been resorted to. It would work great injustice, and, in many cases, gross frauds, if such transactions were not within the registry acts, and the construction [**13]  now contended for by the appellant, cannot be accepted by the court, without subjecting the community to such risks.
Upon the question of notice this court said, in Winchester's case, 4 Md. 231c, that "actual knowledge must be shown by proof, or at least such circumstances must be proved as would 

 [*525]  have been sufficient to put the party on inquiry." See, also, 1 Md. 403, Price, et al., vs. McDonald. Applying this principle to the present case, we have not been able to discover any sufficient ground for denying to the appellee the priority claimed by it. The case must be so clear as to satisfy the mind, that the allowance of the claim would be a fraud on the party setting up the first deed. In Wyatt vs. Barwell, 19 Ves. 435, it was said: "A registered deed stands upon a different footing from an ordinary conveyance. It has been much doubted, whether courts ought ever to have suffered the question of notice to be agitated as against a party who has duly registered his conveyance; but they have said, we cannot permit fraud to prevail, and it shall only be in cases where the notice is so clearly proved as to make [**14]  it fraudulent in the purchaser to take and register a conveyance in prejudice to the known title of another, that we will suffer the registered deed to be affected." And the same principle had been recognized by Lord Hardwicke in Hine vs. Dodd, 2 Atk. 235, who said, "though there are strong circumstances of notice before the execution of the mortgage, yet, upon mere suspicion only, I will not overturn a positive law;" but, he added, "apparent fraud, or clear and undoubted notice, would be a proper ground for relief." See, also, Dey vs. Dunham, 2 Johns. Ch. Rep. 182.
No satisfactory conclusion, in aid of the appellant's pretensions, can be drawn from the testimony of Mr. Freeman. The record shows so many mistakes in his recollection, as to matters of facts, that we must suppose he had no very clear conception of his own affairs at the times at which he spoke of them. In his answer, prepared in March 1836, two years after these deeds were executed, he professes to give a relation of his business with these companies, and, in October 1849, when examined under the commission, he confidently referred to that answer, and offered to restate the [**15]  same matters as part of his evidence, yet, on the cross-examination he shows, that he was greatly mistaken in particulars very material to the merits of the controversy. Reliance was placed in argument on his statement, that Neff knew as much of his affairs as he himself 

 [*526]  did, and the inference was deduced, that he must have known of this mortgage; but we think this by no means a necessary conclusion, when we consider how his information was acquired. It is certain that these frequent conversations did not keep him advised of other matters, for he did not know of the deed to Poultney; if we are to credit every thing that appears under the commission, Freeman, himself, must have forgotten that deed, because he offered, as security for the loan he was asking of the appellee, the very property which he had conveyed to Poultney, and when it was mentioned to him by Mr. Teackle he had so far forgotten the transaction as to misstate the facts. Neff does not appear to have overlooked any thing necessary to make his company secure. He placed the business in the hands of counsel, and if he had been advised of the deed to the appellant, or had had reason to suspect its existence, we [**16]  think we should have heard something of it in the progress of the searches and investigations of title made by Mr. Teackle. As far as this record discloses, we find, that whatever were the confidential relations between them, and however well informed as to each others affairs, when a matter of business arose Neff did not rely on Mr. Freeman's statement alone, but dealt with him as any prudent man would deal with another, by resorting to counsel and the public records where evidence of titles is usually found. It is reasonable to suppose that they had frequent conversations about their affairs, as they were engaged in the same kind of operations, but the information acquired from such conversations, which do not appear to have related to any specific transaction, and which do not enable this witness to say, except inferentially, that Neff had knowledge of the mortgage, is not such notice as the law requires when it is sought to deprive a registered deed of its priority. In the multiplicity of his operations, and the fluctuations in the value of property in a large city, to say nothing of the inflated importance a speculator generally ascribes to the property in which he deals, or on [**17]  which he may be seeking to raise money, conversations about business with a person employed as Mr. Freeman says he was, could not impart that clear knowledge of his affairs which a prudent man would rely on, or which should bind him in a case like the present.

 [*527]  We do not find in the record evidence of facts that would charge the company with notice, on the principle, that what will put a party on inquiry is equivalent to notice. Freeman offered a mortgage on this property, being, as he had been for some time, in possession. There was nothing before Neff or the company, from which they could learn, that the appellant held any lien on the security. If they had put themselves on such an inquiry, there was no more reason for seeking information from the General Insurance Company than from any resident in Baltimore.
We deem it unnecessary to examine the testimony in detail, because, conceding that Neff had sufficient notice, or that which the law deems equivalent to it, it does not appear to have been communicated to the board of directors. This question was examined by the court in Winchester's case, 4 Md., and, after again considering it, we are prepared to affirm,  [**18]  with the Chancellor, as far as is applicable to the present record, "that notice given to a director of an incorporated institution privately, or which he acquires from rumor, or through channels open to all alike, and which he does not communicate to his associates at the board, will not bind the institution."
We do not perceive that the appellant can justly complain of this conclusion on the points before us. With a deed in its possession affording ample security, it overlooked or neglected the protection of the registry acts, and, in violation of the policy of these laws, left the debtor to treat with other persons on the faith of the same property; and, unless it be shown that the appellee had such notice as would make it fraudulent to insist upon its junior mortgage, the appellant must bear the consequences of that neglect.
Two other questions were presented in argument, which were not passed upon by the chancellor, viz: the consideration of the mortgage to the appellee, and the marshalling of the securities held by these companies, which we must dispose of.
In reference to the first, it appears by the cross-examination of Freeman, that he got from the appellee its policies [**19]  of insurance for $ 80,000, and afterwards, by an arrangement with Neff, delivered to him $ 50,000, of them, in exchange for his 

 [*528]  own note for $ 20,000, and John Clark's note for $ 30,000. If he received what he agreed to take as the consideration of the mortgage, it makes no difference that he subsequently disposed of a portion of the policies in the manner stated by him. We cannot say that such a transaction was not bona fide, at the time the loan was effected.
Next, as to marshalling. The rule in equity is well settled. The question here is, whether there is any ground for applying it? It was said by Chancellor Bland, in Watkins vs. Worthington, 2 Bland 509, that "this equity is never administered ex officio, nor at the suit of the debtor, but only at the instance of one creditor against another. But the securities or assets can never be marshalled to the prejudice of the creditor, or so as to suspend or put in peril his claim, or upon any other terms than giving him entire satisfaction. For, in making this arrangement, the court cannot lessen his security, or vary his contract, except so far as waiting a short time to ascertain the value [**20]  of the estates can be considered as having that effect. The creditor who calls for it, must show that the right of his co-creditor will neither be endangered nor injuriously delayed; for if he fails to do so, he can have no other benefit than a subrogation of his right, or the being allowed to stand in his place." And according to 3 Bland 514, it must be "clear that the creditor can sustain no loss, nor be in any way delayed, or have his claim subjected to any additional peril."
It is true that, under the act of 1832, ch. 302, this court may remand a cause for further proceedings, and, in such cases, we sometimes do more than the court below could have done of its own motion, because when a cause is submitted for final decree, generally, it must be decided on the case as then presented.  Harris vs. Harris, 6 G. & J. 111. But the record must indicate that the ends of justice will be promoted by such further proceedings, in order to authorize this court to remand a cause. It is clear, that, as the case was presented to the chancellor, there was nothing by which the securities could have been marshalled, as now proposed on the part of the appellant.  [**21]  The decree, in this aspect, was unquestionably 

 [*529]  correct.  6 G. & J. 111. Does it contain such matter as to justify our interference under the act of 1832, consistently with the views expressed by Chancellor Bland? This suit was commenced in January 1835, and the appellee was arrested in availing of its security by the appellant's setting up its deed of March 1834. Since then no effort has been made, by the appellant, to throw the appellee upon the other property contained in its mortgage. Whether in this lapse of time that property has increased or decreased in value, while the incumbrances have been accumulating, no where appears. We have seen that the court may wait a reasonable time to ascertain the value of the estates. Now, has not sufficient time for that purpose transpired? May we not conclude, that if marshalling would have benefitted the appellant, steps to that end would have been taken in an earlier stage of the cause? The appellant has not shown us, that the rights of the appellee will not be endangered or delayed to its prejudice, nor offered any suggestion, upon the record, by which we can determine that the equity of the case requires the record [**22]  to be remanded.
Besides this objection, it appears that the auditor's report was submitted by agreement, with a reservation of the right to except; but the point now presented was not raised in the chancery court, and the account being in conformity with the previous opinion of the chancellor, and no exception filed, on the question of marshalling, which was not decided in that opinion, the order ratifying the account cannot be reversed on that ground.  Miller vs. Allison, 8 G. & J. 35. Act of 1825, ch. 117.
Under these circumstances, we ought not to put the appellee to further litigation and delay, on the mere possibility that, ultimately, there may be sufficient funds to pay the claims of both parties, but should allow that company the benefit of its lien, as ascertained by the order of the chancellor.
Affirmed with costs. 

31 of 47 DOCUMENTS 

EUPHRASIA COOKE, by prochein ami, vs. JOSEPH E. HUSBANDS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 492; 1857 Md. LEXIS 59 

DECEMBER, 1857, Decided 

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

By his will, executed in 1833, William Mann devised to certain trustees all his real estate, in trust, for the following purposes, viz: "In trust that they, the said" trustees, "their heirs and assigns, do and shall pay one-half of the rents, issues and profits arising therefrom, unto such person or persons only, and for such intents and purposes only, as my said niece, Eurydice, by any writing or writings, under her hand and seal, from time to time, shall direct or appoint, notwithstanding any coverture she may be under, and in default of such direction or appointment, and in the mean time, until she shall make any such direction or appointment, do and shall pay the same, or so much whereof she shall from time to time happen to make no such appointment, into the proper hands of my said niece, exclusively of any husband she may happen to marry, who is not to intermeddle therewith, nor is the same, or any part thereof, to be subject or liable to such husband's control, debts or engagements; and I will and declare that the receipt of my said niece, or such person or persons as she shall or may, from time to time, direct or appoint [**2]  to receive such rents, issues, or profits, shall, notwithstanding any such coverture, be good and effectual releases and discharges for the same, or so much thereof as shall be expressed to be received; and from and immediately after the death of my said niece, Eurydice, the said trustees to hold her share of the said rents, issues and profits to the use of all and every the child and children of the said deceased, equally to be divided between or among them, if more than one, share and share alike, and if but one child, then to the use of the said child, and his or her heirs, executors, administrators and assigns, forever; provided, also, if there be a child or children, and such of them as shall be a son or sons, shall happen to die before he or they shall attain the age of twenty-one years, and such of them as shall be a daughter or daughters, shall happen to die before she or they shall attain her or their ages of twenty-one years, or be married, then, and in such case, it is my will that my said niece, Eurydice, shall be taken to have died without issue, and her share of the rents, issues and profits shall be held by the said trustees for the benefit of the surviving niece, or [**3]  her issue, as is hereinafter provided. And as to the remaining half of the said rents, issues and profits, I give the same to the said trustees, in trust, that they shall pay and apply it to the use of my niece, Euphrasia, and her issue, in the same manner and to the same purposes as is hereinbefore provided and limited for the use of my niece, Eurydice, and her issue; and in case of the death of either of my said nieces, without issue, during the life of the other, then the part, share and portion of such niece so dying, to be held for the use of the survivor of said nieces, and her issue, under the same provisions and limitations to which the original share was liable; and in the event of the death of both of my said nieces, without issue, then I give and devise the whole of the said real estate above devised, together with the rents, issues and profits therefrom arising" to certain other trustees, for the uses and purposes of an infirmary for children, &c.

The two nieces subsequently married, and on the 3rd of September 1841, they, with James Edwards, who had been appointed, by a decree of Baltimore county court, their trustee, in place of the trustees named in the will, executed [**4]  a deed to Joseph E. Husbands, of property held by the trustee under the will. This deed, between Edwards of the first part, Euphrasia Cooke and Eurydice Pennington of the second part, and Husbands of the third part, recites the provisions of the will, and also that "for the consideration hereinafter expressed, the parties of the second part have sold to the party of the third part hereto, all their estate and interest, right, title, use, trust, property, claim and demand whatsoever, of, in, unto and out of the several parcels of ground and premises hereinafter described, and the several rents issuing and payable thereout." It then proceeds: "Now this indenture witnesseth, that for and in consideration of" one dollar, to the party of the first part paid, by the party of the third part, "and of the sum of one thousand seven hundred dollars, lawful money, to the parties hereto of the second part also paid by the party of the third part," the receipt of which is acknowledged, "the said James Edwards, trustee as aforesaid, hath, by the direction and appointment of the parties of the second part hereto, testified by their being parties to, and signing, sealing and delivering these presents,  [**5]  granted, bargained and sold, aliened and conveyed, and by these presents doth, by the direction and appointment aforesaid, testified as aforesaid, grant, bargain and sell, alien and convey, and the said Euphrasia Cooke and Eurydice Pennington have, and each of them hath, granted, bargained and sold, aliened, enfeoffed and conveyed, and by these presents do, and each of them doth, grant, bargain and sell, alien, enfeoff and convey unto the said Joseph E. Husbands, his heirs and assigns, all the estate and interest, right and title of the said Euphrasia and Eurydice, of, in, unto and out of" five several pieces of ground and premises, which are particularly described in the deed, and are also recited as yielding annual rents under perpetual leases; "together with the improvements and appurtenances, and the reversion and reversions, rents, issues and profits thereof, and especially the aforesaid annual rents so as aforesaid reserved thereon, and issuing and payable thereout, and all the estate and interest, right and title of the parties hereto, of the second part, and each of them, in, unto and out of the same. To have and to hold the five several pieces or parcels of ground and premises [**6]  above described, and hereby granted and conveyed, or mentioned or meant and intended so to be, with the appurtenances, unto the said Joseph E. Husbands, his heirs and assigns, for and during the term of the natural lives of the said Euphrasia Cooke and Eurydice Pennington, to the end and intent that the said Joseph E. Husbands may, during the above period, be permitted to collect and receive the five several clear, annual rents aforesaid, for his own proper use, benefit and behoof, with full right and power to said Husbands to enforce, if need be, by all lawful ways and means; the payment of said rents."

The acknowledgment to this deed is made in the usual form by all the grantors, as if sui juris, there being no separate examination of the married women. Mrs. Pennington died without issue in April 1848, and on the 19th of December 1848, the bill in this case was filed in the High Court of Chancery, by Mrs. Cooke, against Husbands, the grantee in the above deed, Eber F. Cooke, her husband, and the trustee who had been appointed in place of Edwards.

The bill alleges that all that was contracted to be sold by the above deed, was Mrs. Pennington's interest, for life, in one-half [**7]  of these rents, and complainant's own interest, for life, in the other half, and not any interest or estate to devolve under the will on the one or the other, by the death of either, and that she executed and acknowledged said deed under the impression that it was conveying only the life interests of the two, and that it would not carry, or in any wise affect, the half that would devolve on her by the death of Mrs. Pennington; that Husbands now inequitably and fraudulently pretends that the phraseology of the deed accords this latter half to him, but insisting that no reasonable interpretation of the deed can assure to him such an interest, and relying on its terms as limiting his present rights to her own half, complainant insists that however the deed may be construed, the contract of sale should govern his claim, and that the deed, if necessary, should be reformed and modified to conform to said contract, and that so far as it apparently varies therefrom, it was executed in mistake. The bill further charges, that the deed is invalid, because, by the terms of the will, complainants was debarred from making any conveyance, in anticipation of accruing rents, of her interest in said [**8]  rents, and even if such a conveyance were admissible under the will, it cannot operate without the union therein of her husband, and her separate examination, as in ordinary assurances of a feme covert's estate.

The bill also charges, that the deed is inoperative as to the consideration which was paid in Tide Water Canal bonds; that the rents conveyed, amount to $ 275 per annum, and the consideration therefor, stated in the deed, is $ 1700, while the amount in fact paid, by disposition of the canal bonds, was but $ 850, they having sold at 50 cents in the dollar, instead of yielding 73 cents, agreeably to Husbands' assurances of their value, under which they were taken. It also insists that the deed was inoperative, because it was obtained by fraud and imposition, from complainant and Mrs. Pennington, for the benefit of their husbands, and to pay their husband's debts, without any part of the money coming to the complainant, and, in this aspect of the case, the bill claims that the deed shall be vacated and the property re-conveyed, at least, on Husbands being refunded, from the rents, his actual outlay therefor, as determined by the realized value of the canal bonds. It also [**9]  claims an account of rents received, and payment to the complainant, or for her benefit, of any balance found due upon the accounting.

The bill then prays for relief according to the several views in which the case is presented, and for an injunction restraining Husbands from collecting, and the tenants of the property from paying to him, any part of these rents, until the further order of the court, and that a receiver be appointed to collect and receive the same, and to hold, preserve and dispose of them as the court shall direct, and for general relief.

The deed and will were filed with the bill as exhibits. The chancellor (JOHNSON) granted the injunction as prayed, but ordered "the application for a receiver to stand over for the coming in of the answers."

The answer of Husbands denies that, by the death of Mrs. Pennington, any part of these rents became the property of the complainant, and charges that she parted with her whole interest therein by the deed. He avers, that on the day the deed was executed, he, with the two justices before whom it was acknowledged, and his counsel, went to the house of the complainant, and where her sister, Mrs. Pennington, was also [**10]  living, and that the deed was read to both of them, and one-half of the purchase money, in canal bonds, was then paid to Mrs. Pennington, and the other half was counted into the hands of the complainant; that when called on, by their husbands, to purchase the interests of these ladies in these ground rents, he told them he would purchase, provided the canal bonds would be received by the owners of the property, and he denies that he ever made any representations to any of the parties, as to the value of these bonds, but, on the contrary, repeatedly told both their husbands, during the negotiations, which lasted nearly six weeks, to go into the market and ascertain their value. He also denies that any false representation was made to the complainant, or her sister, in regard to the extent of the estate conveyed by the deed, but that when the deed was read to them they were informed, that, if they signed it, they would thereby part with all their interest in the ground rents thereby conveyed. He denies that he had any knowledge of the pecuniary condition of the husbands, or that they, or either of them, designed to, or did, apply the money paid to their respective wives, to their own [**11]  use. And this respondent further says, that the contract made on his part is clearly expressed in the deed which the complainant has filed in this court, and that said contract requires no reforming or changing, to carry out the true intent of the parties. He further denies that the deed is in any manner defective, or that it was at all necessary for her husband to have united in executing it, or that she was in any way debarred from directing her trustee to dispose of the property, and further denies all manner of unlawful combination, fraud and confederacy wherewith he is charged by the bill.

Cooke, in his answer, says, that all is true that is stated in the bill, concerning the negotiation for, and transfer of, the interest of his wife in these rents, and states that the interest agreed by respondent (his wife not having been a party to the agreement) to be conveyed, was only the interest then actually in his wife for life, and none that might, by the death of her sister, accrue to her, and that neither his wife nor himself believed that any further interest was conveyed, and that the representations and understanding expressed when the deed was executed, were all to that purport,  [**12]  positively and strictly. He also admits that the other allegations of the bill are true. The trustee, in his answer, says, he is a stranger to the matters complained of in the bill, and submits to such decree as the court may deem proper to pass.

A commission was then issued, and testimony taken, the purport of which is sufficiently stated in the opinion of this court. The cause was then removed to the circuit court for Baltimore city, where it was argued, and the court (KREBS, J.) decided that the will gave to the nieces the power of disposition of these rents, and prescribed the particular mode in which they were to do it, and that, by the terms of this power so given, they were authorized to make an absolute or sweeping disposition thereof. He also decided that the deed was a valid exercise of the power in the mode directed by the will, and that it conveyed the contingent interest which vested in the complainant upon the death of her sister, as well as the complainants own life-estate, and that there was no sufficient proof of fraud or mistake so as to authorize the court either to vacate or reform it. He therefore passed a decree, dissolving the injunction and dismissing the [**13]  bill, and from this the complainant appealed.  

DISPOSITION:
Reversed and remanded with costs.  

HEADNOTES:

In equity, a married woman is to be treated as a feme sole, in respect to her separate estate, and where the instrument creating the estate contains no limitation on the power of disposition, she may dispose of it as a feme sole, upon the principle that the jus disponendi accompanies the property.

But where a mode of alienation, or of appointment, is provided in the instrument creating the estate, that mode must be pursued, for it operates as a negation of any other, and is a paramount law, governing and controlling every contract in relation to the property.

A testator devised all his real estate to trustees, in trust, to pay the rents and profits thereof to such persons and purposes as his two nieces shall, by any writing or writings, under their hands and seals, "from time to time" direct and appoint, notwithstanding their covertures, and in default of such appointment, to pay the same to his said nieces, free from the control, debts or engagements of their husbands, and "from and immediately after the death" of each of his said nieces, to hold her one-half of the said rents and profits to the use of her child or children, and in case of the death of either niece, without issue, during the life of the other, her share of the rents and profits to be held by the trustees, for the benefit of the survivor, and in the event of the death of both, without issue, he disposes of the whole estate upon other trusts. HELD:

1st. That the testator designed to limit the power of disposal to the rents and profits, and the nieces had but life estates, and, therefore, no power to unite with the trustees in a conveyance of the fee.

2nd. That they had power to appoint the rents and profits arising out of the contingent remainders to each, depending on the previous death of the other, such interests being assignable in equity.

3rd. That the words "from time to time," imposed no restriction upon alienation or appointment, so as to prevent anticipation, and the nieces had power to make a sweeping appointment of all their interests in these rents and profits.

A devise of the interest of a fund, or the profits of an estate, as a general rule, passes the fund or estate absolutely, but this construction does not obtain where the will shows a different intent, for the testator's intention, to be gathered from the whole will, must have effect.

A deed of a married woman, conveying her separate estate, over which she had the power of appointment, even if not good at law, may, in equity, be treated and enforced as an agreement to assign or appoint.

Where the draughtsman was instructed to prepare a deed conveying a certain interest in property, and, by mistake, made it to embrace a greater interest than the parties intended, a court of equity will, upon parol proof of such mistake, reform the deed. 

COUNSEL:
Chas. F. Mayer for the appellant:

1st. The deed, by its actual, legal import, is to be construed as conveying only the immediate life estates of Euphrasia and Eurydice. And no deed could, at law, convey more; the interest in the cross-remainder being contingent, the assignment of which will not, in equity, be deemed effective, unless in point of consideration, and of all circumstances connected with the rights of the wives, an equitable case, fit for specific performance of a contract, be clearly made out. No such case is here presented in favor of Husbands. Comyn's Digest Titles "Assign" C. (3.) "Grant" D. Fearne on Remainders, 289, 444. 1 Preston on Estates, 68, 70. Coke Litt., 46, b. 1 Ves., Sen., 391, Whitfield vs. Fausset. Ibid., 411, Wright vs. Wright. 10 Coke, 51, Lampet's Case. 2 Spence's Eq., 855. 14 Johns., 193, M'Crackin vs. Wright. 17 Johns., 167, Jackson vs. Vanderheyden. Neither estoppel nor warranty can bind a feme covert, and, moreover, this deed contains no warranty, and neither does a deed of a contingent interest operate by way of estoppel. Nor is a deed of bargain and sale [**14]  equivalent, in this State, for all purposes, to a fine and recovery.

2nd. But if the deed does pass this contingent interest, then it was executed under a mistake, and should be reformed. The testimony clearly shows that only the present life estates of the wives were contracted to be conveyed. The draughtsman of the deed says that his instructions were to convey only such life estates, and that he drew the instrument for that purpose, and thought, at the time, it only conveyed such interests, and would think so now, but for the doubts of counsel. There cannot be stronger evidence of the mistake than this. (2 Md. Ch. Dec., 388, 389, McDowell vs. Goldsmith.) Again, the defendant himself never supposed the deed conveyed the cross-remainders, and in his answer to the explicit charges in the bill, as to what the contract was, he says the deed speaks for itself. Such an answer is not a denial, upon oath, of the charge in the bill; it is evasive, and not frank.

3rd. The will does not authorize any conveyance or disposition of the rents or property devised to these ladies; at least none is authorized for the cross-remainders. Where a settlement contains a limitation on the power [**15]  of disposition, or prescribes the mode of disposition, the wife is bound by it, and where the settlement contains no power of disposition, she has no power to alien or dispose of the property. 1 Ves. & Bea., 118, Lee vs. Muggeridge. 3 Johns. Ch. Rep., 78, Methodist Church vs. Jaques. 4 Md. Ch. Dec., 68, Tarr, et al., vs. Williams & Wife. Ibid., 414, Williams vs. Donaldson. 2 Wharton, 11, Thomas vs. Folwell. White's Eq. Cases in 65 Law Lib., 370 to 378, and the cases there cited in the comments upon the case of Hulme vs. Tenant. 8 Gill 134, Smith vs. Morgan. 5 Md. 234, Miller & Mayhew vs. Williamson.

4th. If any disposition be authorized, an assignment of the rents by anticipation, or, in other words, a sweeping appointment of the whole prospective interest in the rents, is not authorized. 65 Law Lib., 369, 370, and cases there cited. 3 Johns. Ch. Rep., 114. No particular form of words is necessary to restrain such alienation; this must depend upon the intent of the testator, to be gathered from the whole will. This intent is sufficiently manifest upon the face of this will, for the testator directs the trustees to pay the rents to such person or persons only, and for such [**16]  intents and purposes only, as his nieces, by any writing or writings, under their hands and seals, from time to time shall direct and appoint, and until she shall make any such appointment, to pay the same, or so much whereof they shall from time to time happen to make no such appointment; and he further provides that the property shall be free from the intermeddling of their husbands, and not liable to their control, debts or engagements.

5th. It is further insisted, that the consideration actually received, was imposed upon the parties by misrepresentation and fraud, and that the deed was procured, as the testimony shows, through the control and intermeddling, and for the benefit of the husbands, and is, for these reasons, void.

John Nelson for the appellees:

The questions presented in this case are these. 1st. Had these parties power under the will to convey at all? 2nd. Had they the power to convey the cross-remainders? 3rd. What in point of fact have they conveyed by this deed? 4th. Was there any fraud for which the court will vacate the deed? and 5th. Was there any mistake which will authorise the court to reform it?

1st. The will confers a sweeping power [**17]  of appointment by any writing or writings under their hands and seals. There is no restriction or limitation in the words "from time to time," which are supposed to limit the appointment to such rents and profits as may become due from time to time. The dictum of Chancellor Kent on this point, in the case of The Methodist Church vs. Jaques, was overruled, on appeal to the Court of Errors, (17 Johns., 548,) where it was also held contrary to the opinion of the Chancellor, that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. That a limitation against the power of anticipation, is not made by the words "from time to time," has been clearly settled by numerous cases in England. See 65 Law Lib., 369.

2nd. As to the power to convey the cross-remainders. There is no distinction in the will between the rents and the rest of the estate; the whole goes to the survivor, upon the death of either without issue during the life of the other. At common law,  [**18]  you could not by a deed of bargain and sale convey such an interest, because you could not give livery of seizin, but you could do it by a fine and recovery, which would operate by way of estoppel during the life estate, and the moment the life estate fell in would become operative as a conveyance making the estate absolute. Fearne on Remainders, 365, 550, 551. 8 Barn. & Cress., 497, Brune vs. Martyn. That such an interest is assignable, is conclusively settled by the case of Miller & Mayhew vs. Williamson 5 Md. 237.

3rd. The deed actually conveys "all the estate, interest, right and title, reversion and reversions," with habendum to the said Husbands, his heirs and assigns, "for and during the natural lives of the said" Euphrasia and Eurydice; that is during the life of both, not during their joint lives. It clearly passes the cross-remainders.

4th. As to fraud. The deed was executed on the 3rd of September 1841. The consideration was to be paid in the notes of the Tide Water Canal Company. The parties were told to inquire into the value of these notes for themselves, and they took them without question. They made no claim until seven years after the date of the deed.  [**19]  Such laches will prevent the claim from being set up now. There was no fraud in paying the purchase money into the hands of the husbands, if the wives consented to make them agents to receive it, and that they did so appoint them as agents, is conclusively shown by the evidence. See 9 Gill 156, Clements vs. Smith. 2 Gill 163, Bell vs. Webb & Mong. 2 Md. Ch. Dec., 474, Latrobe vs. Tiernan. 3 Gill 366, Glenn vs. McKim. 3 Bland., 142, Salmon vs. Clagett.

5th. As to mistake. The answer denies the mistake, and says that the deed contains the contract. Now when a deed is sought to be reformed on the ground of mistake, the authorities all show that the proof of the mistake must be clear, satisfactory, and of such a character as to leave no reasonable doubt on the mind. (6 Ves., 328, Marquis of Townshend vs. Stangroon. 1 Brown's Ch. Rep., 94, Irnham vs. Child. 6 H. & J. 445, Watkins vs. Stockett. 2 Gill 163, Bell vs. Webb. 9 Gill 430, Beard vs. Hubble. 1 Md. Ch. Dec., 239, Goldsborough vs. Ringgold.) And there is no evidence in this case which comes within this rule.  

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

OPINIONBY:
TUCK 

OPINION:

 [*503]  TUCK,  [**20]  J., delivered the opinion of this court.
As we understand the English cases, the doctrine was established before the American Revolution, that in equity a married woman is to be treated as a feme sole, in respect to her separate property; and that she may dispose of it, unless restrained by the instrument creating the estate. There is to be found some diversity among the cases since that time, and, especially, as to what amounts to restraint upon alienation. In this country the decisions have not been uniform, some following the English doctrine, and others denying to the wife any power over the subject not authorised by the deed.
For examination of these questions and the authorities, see 2 Roper on Husband & Wife, ch. 19, 20. 1 Sugden on Powers, ch. 4, sec. 1. Hill on Trustees, 633, (Ed. of 1857.) McQueen on Husband & Wife, 294. Clancy on Husband & Wife, chaps. 5, 6, 7, 8. White & Tudor's Cases in Equity, 324, (Hulme vs. Tenant.) 3 Johns. Ch. Rep. 77; and same case on appeal in 17 Johns. Rep. 548. Story's Eq., sec. 1390. Adam's Equity, 44, 45.
In Maryland the law is settled, that where a mode of [**21]  alienation or of appointment is provided, it operates as a negation of any other mode, and is a paramount law governing and controlling every contract in relation to it.  Lowry vs. Tiernan, 2 H. & G. 34. Tiernan vs. Poor, 1 G. & J. 216. Brundige vs. Poor, 2 G. & J. 1. Miller vs. Williamson, 5 Md. 219. But it has never been decided as far as we can discover, whether a feme covert may or may not dispose of her separate estate, where the deed is silent on the subject. We may consider it as unsettled as late as 1849, when the Court of Appeals declined examining the question of a feme covert's jus disponendi of her estate, "where the instrument under 

 [*504]  which she held conferred no such power in terms." Smith vs. Morgan, 8 Gill 133. The point was not determined in Miller vs. Williamson, 5 Md. 219, and that case is not to be considered as authority on this precise question, the observations of the court having been made, with reference to the will then under consideration. See also 5 Md. 134. The late Chancellor, in the cases of Tarr vs. Williams and Williams vs. Donaldson, 4 Md. Ch. Dec. 68 and 414, [**22]  expressed his concurrence with Chancellor Kent's views, as set forth in the case of The Methodist Church vs. Jaques, 3 Johns. Ch. Rep. 77, and also with those of Chief Justice Gibson, in Thomas vs. Folwell, 2 Whart. 11. It must be observed, that in these cases, the question we are now considering was not necessary to the decision, for in each of the deeds there was a mode of appointment prescribed, and it was sought to appoint or alienate in a different manner. Chief Justice Spencer, in reviewing Chancellor Kent's opinion, (17 Johns. 578,) declared, that "from the year 1740 to 1793, (with the single exception of the opinion of Lord Bathurst, in Hulme vs. Tenant, which occurred in 1778, and in which a rehearing was granted by Lord Thurlow, and the opinion reversed,) there was an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless especially restrained by the instrument under which she acquires her separate estate." And Chancellor Kent himself, admits [**23]  the weight of authority to be against him. Indeed, he concedes that an intent may be deduced, where the deed does not speak, for in his opinion he says: "Perhaps, we may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife, and this is the most that can be inferred." And he very clearly places his decree on the circumstance, that there was a mode of appointment prescribed in the instrument, and that no other could be resorted to. But if we are to take these eminent jurists, as having declared that power does not exist unless it be conferred by 

 [*505]  the deed, it may be said, that while there is much force in the reasoning employed by them, on the general subject, when considered with reference to the objects of such deeds, and the circumstances under which, generally, they are executed, as stated by them, very distinguished judges have held the contrary doctrine, and supported their judgments with as much ability, if it be conceded that they have based their conclusions on a correct understanding of the policy and purposes of such settlements. [**24]  
We think that there is a principle underlying this branch of jurisprudence which should not be disregarded, and that is, that the right to dispose accompanies the ownership of property, which cannot be fettered by intendment, however this may be done by express words; and as these settlements are creatures of equity, designed to confer rights on married women not enjoyed at law, and may be made to express what the parties intend, the feme covert should be considered as having the power of disposal, unless a different intent be manifested by the instrument. It cannot be maintained as a general proposition, universally true, "that these settlements are intended to protect the wife's weakness against her husband's power, and her maintenance against his dissipation," as assumed in 3 Johns. Ch. Rep. 113, for many of them are made where the utmost confidence is reposed in the husband; the sole object being to protect the wife and family against the consequence of his misfortune or losses in business, by exempting the property from liability for his present as well as future debts. We are not to assume, that husbands will be constantly endeavoring to wrest their wives'  [**25]  property from them, and devote it to their own uses. It is more reasonable to suppose, that they will guard and protect her rights, and act in reference to her separate estate, for the interest of all concerned in the trust. That cases of hardship and wrong have occurred there can be no doubt, but, in a large majority, we think the purposes of the settlements have been faithfully fulfilled, by leaving to the wife the control of the property, under the advice of the trustee and her friends; nay, indeed, of the husband himself. It is not a conclusion of law, that when property 

 [*506]  is settled on a married woman or on a feme sole in contemplation of marriage, the settler designs she shall never dispose of it. It may happen, that her interest will be promoted by a change of investment, and this is often provided for. We incline to the opinion, that in most of the instances in which the English doctrine has been departed from, the judgments were pronounced under circumstances of extreme hardship, bending the law to meet emergencies and prevent consequences not apprehended, and therefore not provided against at the creation of the trusts. In answer to many of the considerations [**26]  urged against this view of the law, it may be said, that if the parties making the settlement intend to tie up the property in the wife's hands, they may use apt and proper limitations, and that where they have not done so, it must be supposed they intended to leave it at large, to the discretion and necessities of the wife, as a feme sole, acting under the advice of those on whom she may rely. Therefore, following the decisions, which, under our institutions it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.
Upon considering the will before us, and collating its several parts, we are of opinion that the testator designed to limit the power of disposal to the rents and profits arising from the property devised to the trustees, and that his two nieces had no authority to unite in a conveyance of the fee by the trustee, even conceding that, as to them, the forms prescribed [**27]  by the act of 1830, ch. 164, were not necessary; upon which we express no opinion. It has been decided, that if the interest of a fund or the profits of an estate be given by will, the devisee will take the fund or estate absolutely. This is generally the construction, but it does not obtain where the will shows a different intent, for the testator's intention, to be gathered from the whole will, must have effect.  Cassilly vs. Meyer, 4 Md. 1. Magruder vs. Peter, 4 G. & J. 323. In the present case, 

 [*507]  only the rents and profits are given to these nieces, with limitations over; and upon the happening of contingencies set out in the will, the estate is disposed of by another declaration of trust, upon the supposition, that a time would arrive when neither the nieces nor their descendants could enjoy the rents and profits. If the rents had been in terms limited to them for life, the point would have been clear of difficulty, on the authority of Lowry vs. Tiernan, 2 H. & G. 34, and numerous other decisions. The result must be the same, if that intent can be collected from the will. It declares what the trustees are [**28]  to do with the rents, "from and immediately after the death" of the nieces, not adding, in case they shall not have appointed or disposed of the rents in their lifetime, or equivalent words, but showing that the fee was to remain in the trustees, to gratify other purposes declared by the testator, which looked beyond a failure of issue of both nieces. In the case of Lowry vs. Tiernan, the court remarked upon the circumstance, that no power had been reserved to the wife over the principal, except by last will and testament, and then only in a certain event. Here no power over the estate is given at all, either absolutely or conditionally; the power relates to the rents and profits only. It was also said in that case, that rights were reserved to future children who would take as purchasers, and that these contingent rights must be protected. The same is the case here, and regard being had to the general intent of the will, we think the same construction should be applied. If we were to hold, that the nieces could make sweeping appointments, to operate beyond their own lives; so as to defeat the expectations of others, we should be setting up for this testator a will that he did [**29]  not make for himself.  Wilson vs. Farquharson, 5 Md. 134.
We are also of opinion that they had power to appoint the rents and profits arising out of the contingent remainders to each, depending on the previous death of the other, as that acquired by Mrs. Cook, by the death of Mrs. Pennington without issue. In Fearne on Remainders, (by Smith, Ed. of 1845,) Vol., 2, 436, it is said, that "executory interests in persons in being and ascertained are assignable in equity, for a 

 [*508]  valuable consideration, and even for good consideration, except as against bona fide creditors;" and that by this it is meant, "that an assignment of them is treated in equity as a contract or agreement, of which it will decree a specific performance." Wright vs. Wright, 1 Ves. Sen. 409. 2 Peere Wms. 182, 187, 191. But on this point it is enough to say, that in Miller vs. Williamson, 5 Md. 219, it was decided, that a contingent interest depending on the death of another, was assignable, and relief was granted accordingly, which settled the doctrine in this State. Whether such an interest of a feme covert can [**30]  pass at common law, except in the mode provided by our acts of Assembly, for transferring the estates of married woman, we need not decide; because this proceeding is in a court of equity, where a feme covert is allowed to deal with her separate property, and if this deed is not good at law, it may be treated and enforced as an agreement to assign or appoint. Tiernan vs. Poor, 1 G. & J. 216. And inasmuch as Mrs. Cook is asking relief against the operation of this instrument, on the ground that she had not power so to dispose of the rents, she must, if she succeeds to any extent, submit to be bound by her agreement, as far as under the will she had power to appoint.
But it is said, on the part of the appellants, that this will contains a restraint upon alienation or appointments, except of the rents as they might accrue and fall due, by force of the words "from time to time." Lord Thurlow thought that the meaning of these words was to limit the appointment and prevent anticipation, and he hesitated before deciding otherwise; but, finally, yielded to what he considered the necessary deduction from previous decisions. It is a remarkable fact that they were introduced [**31]  by the master in chancery, in the settlement of a married woman's property, made under direction of the court, for the very purpose of preventing a sweeping appointment, and when their effect upon an appointment afterwards came before the same court, the Chancellor held that the words were not sufficient.  Pybus vs. Smith, 1 Ves. Jr. 189. 3 Brown's Ch. Rep., 339. Speaking of this case, Lord Eldon, in Jones vs. Harris, 9 Ves. 493, said: "The court 

 [*509]  settling the property, in order to protect it, with all the anxious terms then known to conveyancers, in a day or two afterwards, while the wax was yet warm upon the deed, the creditors of the husband got a claim upon it, by an informal instrument, and the same judge who had made such efforts to protect her, was, upon authority, obliged to withdraw that protection." Yet this construction has ever since been applied there to settlements containing this expression. What effect they shall have in Maryland, is a very important question, when we consider the time elapsed since the cases in which they received a judicial construction, that numerous settlements are drawn after [**32]  the same form, substantially, and that much property may now be held, under like instruments, in reliance upon what was supposed to be the established doctrine. Under such circumstances we deem it unsafe to disturb the interpretation they have received. And we feel less hesitation in thus deciding in the present case, because the party now seeking to escape from the accepted construction, is herself a party to the deed, by which the power of appointment was exercised, and evidently supposed at that time, that she could pass the rents and profits by anticipation.
With these impressions of the will we should decide with the court below, but for the questions of fact presented by the record. We are of opinion that the appellants did not make out a case of fraud on the part of Husbands, in obtaining the property from Mrs. Cooke and Mrs. Pennington, but the case shows, as we think, that the deed was executed under a mistake, or rather that it conveyed more than the parties intended. In the first place it is to be observed, that the defendant does not fully and frankly answer the bill in this aspect of the complaint; he refers to the deed as containing the contract, instead of answering [**33]  the charge of mistake in direct terms.  Hamilton vs. Whitridge, 11 Md. 128. Besides, in his conversation with the witness Bridge, about the rents due after Mrs. Pennington's death, when Bridge said, he thought Mrs. Cooke could sell nothing that she did not hold, the defendant replied, "that that had been his own opinion, but that he now thought otherwise; and then went on to state the express words of the 

 [*510]  deed, and to show how the words of the deed gave it to him," and in a subsequent part of the examination he states, "that his lawyer said he could keep it after Mrs. P's death; that his own opinion had been to the contrary once, but that his lawyer had given him to understand, that by the words of the deed, he could keep Mrs. P's one-half of the Harrison street property after Mrs. P's death, and during the life of Mrs. Cooke." We consider this a clear intimation on the part of Husbands, that his own opinion of his right to the rents was founded on the original contract, as understood by the parties, until he received professional instruction as to the operation of the deed, and that his subsequent claim was based on the deed, as giving more than he [**34]  could rightfully recover under the agreement of purchase. In addition to this, the draughtsman proves the mistake in plain terms. He says: "Witness certainly received instructions as to the interest intended to be conveyed by the deed, and it was intended to convey thereby the interest which each actually had at the time, and not what either might acquire by the death of the other. Witness thought that the deed only conveyed that interest, and would think so now but for the doubts of counsel." Now, what other construction can this language receive than this, that he was instructed to prepare a deed, conveying a certain interest in the property, and, by mistake, made it to embrace a greater interest than the parties intended? It is of no consequence, that he does not state clearly from whom he received his directions. He says, however, that Mrs. Cooke never called on him about the deed, nor did he see her before it was executed. It appears from his testimony, that Pennington first spoke to him about drawing the deed, and that Husbands saw him several times afterwards, before it was prepared. The inference is clear, that he received instructions from one or both of them, and this is [**35]  established by the evidence of Lovegrove, who states, that Spurrier received instructions from Pennington and Husbands. As Spurrier states what the instructions were, Husbands had a very good reason for saying to Bridge, that he once thought the deed did not convey the interest in remainder, because he was privy to the whole transaction, including 

 [*511]  the directions by which the deed was prepared, and, according to Spurrier's testimony, must have known that it was not designed to transfer the contingent interests. The rules governing cases of this kind are very stringent, and we are not disposed to relax them, but this is not like the cases in the Court of Appeals, in which the doctrine relied upon in argument was announced. In Wesley vs. Thomas and Watkins vs. Stockett, 6 H. & J. 24, and 435 it was shown as to one case, that the deed was in the form in which the parties intended and directed it should be drawn, and, as to the other, the contrary did not appear; but in the former case, the court stated the grounds on which questions of this kind must turn; that there were numerous instances where parol proof was admitted to correct mistakes in written agreements;  [**36]  and that mistakes and misapprehensions of the drawers of deeds, are as much a head of relief as fraud and imposition. Whatever courts may have held, as to the nature or character of proof necessary to correct mistakes in deeds, we suppose none can be more forcible than the testimony of the draughtsman himself, that he had not drawn the instrument according to the instructions he received, when considered in connection with, what we consider, the admission of Husbands to Bridge, that the deed covered a larger interest than the parties intended to transfer. If a mistake in law be committed, that is, if a deed be prepared, according to the directions of the parties, in a particular form, with the impression and design that it shall serve a purpose which the law does not allow, the case is to be determined on a different principle. Such were the cases of Anderson vs. Tydings, 8 Md. 427, and Campbell vs. Lowe, 9 Md. 500.
The decree will be reversed and the cause remanded, in order that the deed may be reformed, and the case disposed of according to the views of the contract herein expressed; in which adjustment an account should be taken in respect [**37]  to the rents received, on account of Mrs. Pennington's interest under the will, since her death; that the same may be paid to Mrs. Cooke, or invested for her separate use.
Reversed and remanded with costs. 

32 of 47 DOCUMENTS 

FREDERICK JAMES DUGAN vs. JOHN SMITH HOLLINS and wife, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 41; 1857 Md. LEXIS 23 

JUNE, 1857, Decided 

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

Under the bill filed in this case, on the 12th of June 1848, by Frederick James Dugan, against his co-devisees and legatees, in the will of Cumberland Dugan, deceased, the complainant claims from the defendants:

1st. The sum of $ 13,750, mentioned in the fourteenth clause of the will, with interest from the 3rd of December 1836, the date of the grant of administration upon the estate of the deceased.

2nd. The sum of $ 4583.33, being one-third of $ 13,750, given to Hammond Dugan, under the same clause of the will, with interest as above.

3rd. One-fourth in his own right, and one-third of one-fourth under Hammond Dugan, of the amount due the estate of the deceased, for payments made as security for Robert S. and John S. Hollins, mentioned in the fifteenth clause of the will.

4th. Two-thirds of the sum of $ 9772.31, with interest from the 18th of February 1847, being the amount paid by the complainant on the decree in favor of John S. Gittings and others.

And the complainant insists, that no further distribution of any part of the estate, real or personal, of which the testator died seized or possessed, shall [**2]  be made until he be first paid the several amounts so due him, and if the undistributed estate is not sufficient for such purpose, that he is entitled to a decree, against the defendants, Rebecca Hollins and her children, for one-half thereof, and against the children of Cordelia Margaret Hollins, for the other half. The complainant also contends, that for the purpose of establishing the equality provided for by the will, the parties are confined to the will itself, and have no right to look to the present value of the property specifically devised, or to any gift made subsequent to the will.

By this will, executed on the 5th of October 1832, the testator ordered and directed, that his "funeral expenses and all his just debts shall be paid, out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper," and then devised and bequeathed to his wife, Margaret Dugan, "in lieu of all claim of dower and thirds," a farm called Duck Cove, a lease-hold lot, called the Ferry Point Lot, appraised in the inventory at $ 3000, all his slaves, and furniture, and plate, also a life-estate in four houses in Cumberland Row, in ten ground-rents from property [**3]  on Dugan's wharf, yielding about $ 900 per annum, in his dwelling house and lot, and in a stable and lot on Crowls alley. To his two daughters, Rebecca Hollins, wife of John Smith Hollins, and Cordelia Margaret Hollins, wife of Robert S. Hollins, he devised the Washington Cotton Factory, one moiety to each, and also to each a house and lot on Dugan street, worth $ 925, and a warehouse and lot on Dugan's wharf worth $ 3525; which devises were made in trust, for the sole and separate use of his daughters, for life, with remainder to their children. To his son, Hammond Dugan, he devised one-half the reversion in his dwelling house and lot and the stable and lot in Crowls alley; the reversion in one of the houses and lots in Cumberland Row, one-sixth of the reversion in four other houses and lots, a house and lot on Water street, another on Dugan street, and a warehouse and lot on Dugan's wharf. To his son, Frederick James Dugan, he devised and bequeathed one-half the reversion in his dwelling house and lot, valued at $ 7725, one-half the reversion in the stable and lot, in Crowls alley, a lease-hold lot, called the Water Street Lot, appraised in the inventory at $ 3000 but valued at $  [**4]  2000, certain lots on Fells Point, valued at $ 12,823, a house and lot on Dugan street, valued at $ 925, a warehouse and lot on Dugan's wharf, valued at $ 3525, the reversion in one of the houses and lots in Cumberland Row, valued at $ 7700, and one-sixth of the reversion in four other houses and lots. To the children of his son, Frederick J., he devised property worth $ 7500, a part of which, however, by the construction of the will has been adjudged to belong to the two sons of his daughters, to whom also he devised property worth $ 14,975, a portion of which, valued at $ 11,000, has been adjudged to belong to Gittings and others, by the decree already referred to. (The above valuations of the property were made by admissions in the cause.) The fourteenth and fifteenth clauses of the will are, as follows:

"Item XIV. And whereas it is my wish and desire, that my four children, Hammond Dugan, Frederick James Dugan, Rebecca Hollins, and Cordelia Margaret Hollins, shall be placed by me as nearly as possible on an equality, in the division of my estate, under the present will, and under such conveyances, gifts, &c., as I may have made to them respectively, and also having regard [**5]  to their respective situations; and whereas the Washington cotton factory, hereinbefore devised to the use of my said two daughters, Rebecca and Cordelia Margaret, was purchased by me for the sum of $ 27,500, I therefore order and direct that as early after my demise as may be practicable, my executrix and executors shall sell such portions of my bank or other stock, as shall produce the sum of $ 27,500, and pay therefrom, to my son Hammond Dugan, the sum of $ 13,750, and to my son, Frederick James Dugan, the sum of $ 13,750."

"Item XV. And whereas I am, at this time, security on sundry negotiable promissory notes, drawn by Robert S. Hollins in my favor, and by me endorsed, amounting to about the sum of $ 10,000 more or less; and whereas my daughters, Rebecca and Cordelia Margaret, or either of them, may at this time hold a note or notes of mine, drawn in their favor and each of their favor; now my will and desire is, that the foregoing promissory notes, any or either of them, is to be no charge whatever on my estate, but if any claim whatever is made on my estate, in respect of said notes or either of them, so endorsed or drawn by me, then and in that case my said daughters,  [**6]  or the one making or occasioning such demand or charge, shall cease to receive and be entitled to receive any share or dividend from my estate, so devised to their use respectively, be wholly determined; and should it so happen that my estate should be made responsible for any sum whatever, on account of said notes endorsed or drawn by me, for my said daughters, or for either of their said husbands, then and in that case, I order and direct, that whatever sum may be paid by my estate, on said account, shall be charged by my executrix and executors, against my said daughters, or against such one as may have occasioned any such charge on my estate."

He then bequeathed fourteen shares of Baltimore and Ohio Rail Road stock to his children, grand-children and great-grand-children, and directed that all instalments on these shares, as they may be called for by the company, shall be paid by "his executrix and executors out of his estate." He then directed "his executrix and executors to invest so much money, to be taken from his residuary estate, anything in this will notwithstanding, as will produce $ 150 annually, and pay the same to his grand-son, John Merryman Smith, during life.  [**7]  "--The will then concludes, as follows:

"Lastly. All my lands in Baltimore county or elsewhere; all my bank, road, insurance, or other stocks, except my Baltimore and Ohio Rail Road stock; all my notes, bonds, mortgages, accounts, or other evidences of debt or claims belonging to me; also my wharf, commonly called "Dugan's wharf," extending from the south side of Dugan's street and running north to Pratt street; also one-half of my said wharf at the head, on Pratt street, with all and singular my claims, rights and demands, for damages appertaining to the same; also the reversion of ten annual ground rents on Dugan's wharf, of about $ 900 per annum, after the death of my wife; also all the grounds out of which the said rents issue; also all the rest, residue, and remainder of my estate, real, personal and mixed, I give devise, and bequeath to my four children," naming them, one-fourth "of the said entire residue," in trust for each of his two daughters, in the same manner as the other property devised in trust for them, and the remaining half "of the said residue of my estate" to his two sons, to be equally divided between them.

The testator died on the 1st of November 1836,  [**8]  and the executors named in the will having renounced, letters testamentary were granted to the executrix, Margaret Dugan, who gave bond, as such, dated the 3rd of December 1836, with her two sons, Frederick J. and Hammond Dugan, as her sureties, and continued such executrix until January 1846, when her letters were revoked and administration d. b. n., c. t. a. granted to John S. Hollins, and Rebecca his wife. It was admitted, that her sons, Frederick J. and Hammond, acted as agents of the executrix, and after the death of the latter the former acted as such agent, until the revocation of her letters, in the transaction of business generally connected with the administration of the estate.

The inventory and list of debts show an amount of personalty of about $ 60,000, including the Ferry Point and Water Street leasehold lots, appraised at $ 3000 each, and 949 shares of Franklin bank stock at $ 24.50 per share, making $ 23,250.50. Of this stock 292 shares were sold by the executrix, in September and November 1840 and June 1841; that sold in 1840 bringing $ 17, and that in 1841, $ 5.25 per share. Dividends were regularly declared and received on this stock up to January 1841, when [**9]  it was admitted the bank failed, and that only the sum of $ 8739.75 has been realized to the estate from all this stock.

The executrix passed three accounts, the first on the 10th of August 1840, showing a balance due the estate of $ 44,557.51; the second on the 29th of March 1843, when the debts of the deceased, except the Gittings' claim, were paid, and the losses on sales, up to that time, accounted for, showing a cash balance on hand of $ 6298.14, besides specific property, appraised in the inventory at $ 24,214.25, including the unsold shares of Franklin bank stock, and the two leasehold lots, above mentioned; the third on the 4th of June 1846, after the revocation of her letters, showing, after deducting commissions and specific bequests to the widow, of the Ferry Point Lot and other property bequeathed to her absolutely, and the Water Street Lot, bequeathed to the complainant and delivered over to him, a cash balance of $ 3420.40, and stocks appraised in the inventory at $ 16,214.25, including the Franklin bank stock.

The administrators d. b. n., c. t. a. returned an inventory on the 3rd of July 1846, showing that the personal estate of the testator then consisted [**10]  of certain bank, road and insurance stocks, appraised at $ 5752.50, including the unsold shares of Franklin Bank stock, at $ 7.50 per share, making $ 4927.50. The accounts of these administrators show a balance due the estate of $ 260.92, as of the 10th of January 1849, after deducting a payment of $ 4500 on the Gittings' claim, made on the 21st of August 1846, and other allowances. These administrators also brought suit in September 1846, against the executrix, Margaret Dugan, and the complainant, as surety upon her bond, alleging, that she owed large sums of money to the estate, and, instead of paying the Gittings' claim, had, with full notice thereof, appropriated to herself the Ferry Point Lot, already mentioned as bequeathed to her, and delivered over to the complainant the Water Street Lot, bequeathed to him, and otherwise wasted the assets of the estate. On this suit a judgment was entered, by agreement, on the 12th of June 1848, against the complainant and Margaret Dugan, for the sum of $ 4710.25, with interest from the 4th of June of 1846, this sum being the aggregate of the balance in the hands of the executrix, as admitted by her last administration account and other moneys [**11]  received and not accounted for, but this ascertainment was made without prejudice to the right of the plaintiffs to advance thereafter a claim for any loss occasioned by the delay of the executrix in selling any part of the personal estate.

The Gittings' claim, above mentioned, originated in a bill filed on the 3rd of January 1837, by John S. Gittings and others against the executrix and devisees of Cumberland Dugan, claiming a conveyance of certain real estate, (being part of that which was devised by said Dugan's will to the two sons of his two daughters,) and an account of rents and profits received from the same by said Dugan, in his life-time, and his executrix since his death. Upon this bill decrees were passed on the 24th of March 1841, and the 25th of March 1843, directing the conveyance prayed for and the payment of $ 10,870.81, with interest from the 10th of December 1841, on account of the claim for rents and profits. These decrees were, upon appeal, affirmed by the Court of Appeals, at its December term 1845, and the cause being remanded, subsequent proceedings were had therein to make the leasehold and personal property, bequeathed by Cumberland Dugan, and then in [**12]  the possession of Frederick J. Dugan, the present complainant, responsible for the amount thereof; and pending such proceedings the said Frederick, on the 18th of February 1847, paid the balance of the decree then remaining due, with costs, amounting to the sum of $ 9772.31, and had the same entered to his use.

Hammond Dugan died in 1841, leaving a will devising to his mother his entire property. His estate was settled up and his debts paid by a contribution from the complainant and his sisters. After the death of Hammond, his mother, Margaret Dugan, by two deeds dated the 25th and 26th of March 1841, conveyed all the property devised to her by Hammond, including the Duck Cove farm which she had previously conveyed to him and re-acquired under his will, and the Ferry Point lot bequeathed to her by her husband's will, in trust to be divided amongst her three surviving children by commissioners named in the deeds. This partition was made, and being approved by the parties, was confirmed and perpetuated by a deed between them, dated the 1st of July 1844, by which the complainant granted, released and confirmed, to his sisters, the parts allotted to them respectively, and they did [**13]  the same in reference to his part. By this partition the complainant had allotted to him the Ferry Point lot at a valuation of $ 2500.

Margaret Dugan was subsequently, on the 18th of June 1846, upon proceedings instituted for that purpose, in Baltimore county court, declared a lunatic, and the wife of the complainant appointed the committee of her person, and the son of Cordelia M. Hollins committee of her estate. After the bill in this case had been filed the said Margaret died, and her committee passed an account by which the sum of $ 13,438.72 was accounted for, leaving a balance of $ 706.61 in his hands, subject to the order of the court, which balance was divided amongst the complainant and the other representatives of the said Margaret, without an administration upon her estate; and the furniture on hand at her death was likewise specifically divided in the same way. The slaves given to her by her husband's will, she had manumitted in her life time with the consent of the complainant and his sisters.

The record also shows, that proceedings were instituted in Baltimore county court, by John S. and Robert S. Hollins and their wives, against the complainant, for the partition [**14]  of a farm in Baltimore county, constituting part of the residuum of the testator's estate not specifically devised, upon which a decree was passed by consent, on the 29th of March 1847, ordering a sale for partition. The proceeds of such sale were distributed amongst the parties to that cause, but before the decree was passed it was agreed between them, that the payment over to the complainants in that case, of their shares of the sale, should not prejudice the present complainant, Frederick J. Dugan, in any suit between the parties in relation to the distribution and settlement of the estate of said Cumberland Dugan.

It was admitted, (in reference to the complainant's third claim,) that John S. Hollins and Robert S. Hollins failed in business in 1833, and applied for the benefit of the insolvent laws, and obtained discharges thereunder, the latter in April 1834, and the former in June 1840; that in the year 1829, Cumberland Dugan began to endorse for the accommodation of his son-in-law, Robert S. Hollins, who conducted the Washington Factory on joint account with his brother; that this accommodation, at the date of the will, 5th of October 1832, consisted of endorsements of notes [**15]  to the amount of $ 10,320, and advances in cash to the amount of $ 3000 more, and continued in this condition until the 30th of May 1835, when Cumberland Dugan made affidavit to his claim upon said notes and cash loaned, against the insolvent estate of Robert S. Hollins, and filed the same with his trustees; that the notes which were the basis of this claim had been taken up by said Cumberland in the year 1834, in his life time, and that upon the claims as filed with the permanent trustee, the executrix, Margaret Dugan, received a dividend of $ 910.54 from the insolvent estate of said Hollins.

It was also admitted that after the date of his will, Cumberland Dugan advanced the sum of $ 3400 to the complainant, to enable him to purchase a house; and that the testator's daughter, Cordelia M., wife of Robert S. Hollins, died in January 1848, leaving a will, by which, in execution of the power secured to her under the deeds from her mother, of the 25th and 26th of March 1841, above mentioned, she devised all the estate conveyed to her by these deeds to a trustee, for the benefit of her husband during life, with remainder to her children; and that since the filing of the bill the complainant [**16]  has been found a lunatic, upon proceedings duly instituted for that purpose.

The bill in this case, filed as above stated, avers that by the will of the testator the entire interests of the daughters in the estate are charged with the payment of the legacies of $ 13,750 given to the complainant and his brother, Hammond, by the fourteenth clause of the will, and with such other sums as may be required to effect that perfect equality which the testator designed should exist amongst his children in the distribution of his estate; that the sums which the testator advanced and loaned to John S. and Robert S. Hollins are, with interest, a charge upon the shares or interests in the estate of the testator devised to his daughters and their children; that the devisees and legatees have entered into possession of the several parcels of real and personal property specifically devised and bequeathed to them, but no distribution of the general residuum of the estate has been made, nor has any part of the aforesaid legacies of $ 13,750 each, been paid, and the stocks which were specially set apart and devoted by the will to their payment, have been applied to the payment of the debts of the [**17]  testator; that in order to prevent a sale of his estate, the complainant paid the residue ($ 9772.31) of the decree in favor of Gittings and others, on the 18th of February 1847, and had the same entered to his use, and though his property was liable for the whole amount of this claim, yet he is advised and charges that it was equally chargeable upon the estates devised to Hammond and the daughters, and that each of the daughters ought to have paid and contributed one-third part thereof; that the administrators d. b. n., c. t. a. have sued the complainant at law, as security on the bond of Mrs. Dugan, the executrix, for a devastavit alleged to have been committed by her; that Mrs. Dugan has been declared a lunatic, and that the property and effects in the hands of her committee ought to be applied to make good any devastavit she may have committed in exoneration of her sureties, and that Hammond Dugan having been one of the sureties, his estates in the hand of his devisees or alienees is justly chargeable with one-half of this pretended waste. The bill then prays for an account of the estate of the testator, and of the several claims of the complainant, in respect of said legacies [**18]  of $ 13,750, and of the payments made by the testator for John S. and Robert S. Hollins, and of the payment made by the complainant on account of the decree in favor of Gittings and others, and that the administrators d. b. n., c. t. a. may be enjoined from prosecuting their aforesaid action at law against the complainant.

The defendants by their answers insist that the whole personal estate of the testator, whether specifically bequeathed or not, was chargeable with his debts, in exemption of his real estate, and deny that the will charges the real estate, or any part of it, with the payment of any of the debts or legacies, or that any part of the Gittings' claim paid by the complainant can be brought against them, or against the real estate devised to them by specific devise or otherwise, but, on the contrary, they allege that the complainant was first bound to apply the amount of the judgment for devastavit ($ 4710.25, with interest from the 4th of June 1846,) in reduction of the amount paid by him on account of the Gittings' claim, and that then the specific bequests in the hands of the complainant were next liable for the balance of said claim, which bequests were worth much [**19]  more than such balance. They deny that Mrs. Dugan personally, or any part of her estate, should be held liable on account of the judgment for devastavit, or for any default or waste for which the complainant may be shown to be liable, or for any part of his claim as assignee of Gittings and others, because they say that the complainant and his brother, Hammond, as long as the latter lived, were, from the death of the testator, the agents of the executrix in the administration of her husband's estate, and that upon the death of Hammond, the complainant was her sole agent in that respect, and she relied entirely upon him in the administration of the estate, and that for many years past, and before she was declared non compos mentis, she was, from extreme age and imbecility of mind, incapable of exercising any judgment in regard to the affairs of the estate; they allege that Hammond Dugan duly accounted for the assets of the estate received by him, and are, therefore, advised and charge that the complainant cannot, under the circumstances, throw off the liability for any devastavit in the administration from himself upon his mother or the estate of his deceased brother. They further insist [**20]  that by the partition and the deed of July 1st, 1844, carrying out the same, the complainant is concluded from setting up any of the claims mentioned in the bill against any of the property of Hammond Dugan, which, by such partition and deed, was vested in the respondents or any of them. They deny that the legacies of $ 13,750 to each of the testator's sons, to be paid by the executors out of the sales of the bank and other stocks, can be charged upon any part of the testator's real estate devised specifically or otherwise to the respondents, or vested in them in any other way or manner; and they further say that from the particular clause mentioning these legacies, as well as from the whole will, it is clear the testator meant to make them a charge upon his personalty alone, out of which pecuniary legacies are generally payable; and they also submit whether, under this clause, taken in connection with other portions of the will, these legacies are to be considered more than general legacies, but if deemed specific legacies of so much bank or other stock to pay them, the respondents will then contend that as it was the duty of the complainant, as agent and surety of the executrix,  [**21]  to have obeyed the directions of the will, and sold, without delay, a sufficient amount of stock to pay them; any loss arising from the delay in selling the stock should be borne by the complainant. The two sons of the testator's daughters, answering for themselves, say that the reversion in the property, which was decided to belong to Gittings and others, was devised specifically to them, and that by the decree in favor of Gittings, they have lost the value thereof, and they now insist that if the complainant is entitled to claim of them, or any of the respondents, as legatees or devisees of the testator, to make good any loss arising from the application of the bank or other stocks to the payment of the debts of the estate, they are equally entitled to claim of the complainant, as devisee of their testator, to make good in part the loss of the property so devised to them, and they will, in that case, set up their claim against the complainant as such devisee. The respondents also aver that the liabilities referred to in the fifteenth clause of the will, were all paid by the testator in his lifetime, and they deny that this clause embraces such liabilities so paid, but only refers [**22]  to and means to secure the liabilities of the testator, by reason of the particular notes therein specified, which should not be paid or settled by the testator in his lifetime, but should become a demand or charge upon his estate, to be paid by his executors; and they further deny that there has been any charge made against the estate by reason of any note or notes referred to in said clause, as held by the testator's daughters, or either of them. The respondents, John S. and Robert S. Hollins, rely upon their discharge under the insolvent laws in bar of any personal claim against them, and the respondents generally rely upon lapse of time and the statute of limitations as a bar to the complainant's several claims.

The respondents also filed exceptions denying that under the averments of the bill, the complainant can claim payment for any devastavit on the part of Margaret Dugan as executrix, either from her or her estate, in the hands of her committee, or can claim any portion of the estate of Hammond Dugan, in the hands of the respondents, for any liability of his as cosurety on the testamentary bond of his mother or otherwise, or can claim as one of the assignees of his mother [**23]  of Hammond Dugan's estate, and the other property conveyed in the deeds from his mother of the 25th and 26th of March 1841. They also aver in these exceptions that the above claims, or some of them, if embraced in the averments of the bill, and likewise any claim of the complainant to any fund in the hands of the administrators de bonis non of Cumberland Dugan, are properly cognizable in a court of law, and not in a court of equity.

The cause was then submitted to the chancellor (JOHNSON,) who delivered an opinion on the 26th of January 1854, which is reported in 4 Md. Ch. Dec., 139, and on the same day passed an order referring the case to the auditor, to state accounts in conformity with the views expressed in his opinion, and reserving "all questions not therein decided" for further consideration and order. On the 9th of March following, the cause was removed to the circuit court for Baltimore city, under the act of 1853, ch. 123, and on the 26th of May following, the complainant entered an appeal in the latter court from the above order or decree of the chancellor.

The special auditor, to whom the case had been referred, then made his report, accompanied by several accounts,  [**24]  to which both parties filed exceptions. These exceptions being argued, the court, (KREBS, J.,) on the 15th of June 1855, delivered the following opinion thereon:

"The accounts to which these exceptions are filed, was stated by the special auditor, according to the principles, as he understood them, and under the direction of the chancellor's opinion, delivered on the 26th of January 1854. The chancellor, in deciding the case, says, that he is of opinion that the complainant, Frederick J. Dugan, has a right, in a court of chancery, to call upon the other parties to the partition referred to in the case 'to contribute their fair proportions of the money paid by him in discharge of the decree in favor of Gittings and others, mentioned in the proceedings.' In this passage the chancellor was regarding the parties solely as co-parceners, and deciding that when one had paid money in discharge of a paramount lien or claim upon his share, the others were bound to contribute equally to reimburse him. But the chancellor proceeds to state, that 'by the last clause of the will of Cumberland Dugan, he bequeathed all the rest and residue of his property, real, personal and mixed, partly by specific [**25]  description and partly in general terms, to his four children, Rebecca Hollins, Cordelia Margaret Hollins, Hammond Dugan and Frederick J. Dugan, the shares given to his daughters being in trust. And it is alleged, and the allegation not seriously if at all denied, that some property embraced in this residuary clause remains to be distributed. Especially it is said that ground rents amounting to $ 900 per annum, in which the testator's widow (now deceased) had a life estate, and which constitute a part of the residue, yet remain to be distributed. And the complainant insists that no further distribution shall be made, including the amount in the hands of the administrator of Margaret Dugan, until he is paid the sum due him. It being the opinion of the court that the complainant is entitled to contribution, in respect to the amount paid by him, in satisfaction of the decree obtained by Gittings, an account must be stated for the purpose of ascertaining how much he is entitled to, and it would seem proper, in the mean time, that no further distribution should be made, as insisted on by the complainant.'

"It must be understood, from this portion of the chancellor's opinion, that he [**26]  looked to this residue of the testator's estate, real, personal and mixed, as property to be taken into view in settling the question of contribution between the parties, especially the ground rents amounting to $ 900 per annum, which, as he states, constitute a part of this residue, and this is the more manifest from the fact, that he says that no further distribution of it should be made, because if it was not to be held to be applied, as it might be deemed equitably liable, for contribution to reimburse the complainant, there was no reason why it might not have gone, at once, into the hands of the parties entitled to this residue. It is assumed by the chancellor, and conceded by the parties, that the personal estate of the testator, not specifically bequeathed, is insufficient to pay or refund the balance of this decree paid by Frederick J. Dugan; and if he meant to intimate, and I think it cannot be questioned that he did, that this real estate in the hands of the general residuary devisees was liable to pay this balance, this intimation must rest on the ground that a residuary devise of real estate is applicable to the payment of the debts of a testator before specific legacies [**27]  of personal estate. That this is a general residuary devise of all the testator's estate, not previously devised or bequeathed specifically in his will, is manifest from the language employed by the testator. After specifying certain portions of it, in dividing it amongst his children, he describes it as 'the said entire residue.' In the case of Spong vs. Spong, 3 Bligh, 105, the court, after maturely considering the question, for it was one of the points on which the decision of the court below was reserved, decides that a residuary devise of real estate is not a specific devise, and the reasoning of the judge who delivered the opinion in the House of Lords, is conclusive to show that these two descriptions of devises differ entirely in their character, and I am of opinion that a general residuary devise of real estate is not entitled to any such privileges as would exempt it from being resorted to for the payment of the debts of the testator, after exhausting his personal estate not specifically bequeathed. I do not think that the opinion of the Court of Appeals in Chase vs. Lockerman, 11 G. & J. 185, conflicts in any degree with the position above assumed. On the contrary, I [**28]  think it is sustained by the principles and reasoning set forth in that opinion. The 'general rule of marshalling assets,' the court says, 'is to apply first the personal estate, then lands devised to be sold for the payment of debts, then lands descended, lastly, estates specifically devised, even though they are generally charged with the payment of debts.' Now the court did not intend to include in the personal estate to be first applied under this rule, personal property specifically bequeathed, as the Court of Appeals says, in the case of Alexander vs. Worthington, 5 Md. 493, 'it was assumed in Chase vs. Lockerman, as a point clear in all the authorities, that land descended was first applicable in payment of debts in relief of personal estate specifically bequeathed,' and this question, the court says, in the former case, 'is too well settled in England and in this country, to justify argument thereon.' When, therefore, would the leasehold estate of this testator, which he has specifically devised, the only portion of his estate, with a trifling exception, not yet applied to the payment of his debts, be resorted to for that purpose, according to the order of appropriation [**29]  prescribed by the above rule? It cannot be doubted, I apprehend, that it would come in 'lastly' amongst 'the estates specifically devised,' and would consequently be resorted to after a general residuary devise. It is to be observed that this testator 'orders and directs his funeral expenses and debts to be paid out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper.' He does not restrict them to his personal estate. He then makes a number of specific devises and specific bequests, one of the latter to his wife, and lastly, devises and bequeaths various enumerated parcels of his real and personal estate, together with the general residue, real, personal and mixed, as an entire residue, to his four children: 'all his stocks,' except the Baltimore and Ohio rail road stock, 'all his notes, bonds, mortgages, accounts, or other evidences of debts or claims,' including his whole personal estate, except specific legacies, together with several parcels of his real estate.

"It cannot be doubted that he intended his debts to be paid out of this 'entire residue,' as he denominates it, especially as he does not designate particularly any [**30]  part of his estate out of which they are to be satisfied. He certainly could not have meant that his specific legacies should be taken whilst any part of this residue was unapplied. And I am, therefore, of opinion that the devisees, under this residuary clause, can only claim that part of the 'entire residue' that remains after all the debts are satisfied. That he did not intend this residuary devise of all his stocks, and of the real estate included in it, to be taken by the devisees to whom it was given as a specific and absolute gift, is manifest from the fact that though he gives them 'all his stocks,' yet in a preceding part of his will he directs his executors to sell 'such portions of his bank or other stocks' as shall produce the sum of $ 27,500, and in another part of his will he directs 'as much money to be taken from his residuary estate as will produce $ 150 annually,' to be paid to one of his grandsons, evidently looking to it as the fund to meet the pecuniary demands upon his estate, whether created by his will or by obligations existing in his life time. And further, it was the manifest purpose of the testator to equalize the shares of his estate, that his four children [**31]  were to take under his will, and in making this equal division by his specific devises and bequests, he allots to them, respectively, various parcels of his property, giving to one, as he did to his son Frederick, a leasehold lot of ground, and the improvements thereon, in the city of Baltimore. Now if this specific legacy, or any part of it, should be taken to pay debts, the equality which he has so carefully established, would be disturbed, whereas, by taking from the residuary devise, which he gave to them equally in real and personal property, so much as may be necessary to pay all his debts, this equality is not at all affected.

"Being of opinion, then, that so much of the amount of the decree paid by Frederick J. Dugan, as the personal estate of the testator, other than his specific legacies, is insufficient to satisfy, must be supplied by the real estate embraced in this general residuary devise, the next inquiry is, what personal estate is there other than specific legacies? There is, 1st, a small balance in the hands of the administrators de bonis non, and 2nd, the amount of a judgment for a devastavit committed by the executrix, Margaret Dugan, rendered against her and [**32]  Frederick J. Dugan, he and Hammond Dugan being the securities on her administration bond, the latter having died before the suit was brought.

"The defendants, in their answer, insist that the complainant should be made liable for the whole amount of this devastavit, because he, and his brother Hammond, so long as he lived, were, from the death of their father, the agents of their mother, the executrix, in the administration of the testator's estate, and, after the death of Hammond, the complainant was sole agent, when she relied entirely upon him in the administration of the estate, and for many years before she was declared non compos she was incapable of exercising any judgment in regard to the affairs of the estate; and they allege that Hammond duly accounted for the assets of the estate received by him, and that the complainant cannot throw off the liability for this devastavit upon his mother, or the estate of his deceased brother. This right, claimed by the defendants, to charge the complainant with the amount of this devastavit, is founded upon the imputation that he, whilst acting as agent as aforesaid, received and retained this money, and never accounted for it to the [**33]  executrix. This court cannot act upon the assumption that he really did this without proof of the fact. The whole allegation in the answer, upon this subject, is new matter introduced by the defendants, and the burden of proof is upon them to show, by evidence, that he was an unfaithful agent. The admissions in the cause do not furnish this evidence. They say that Hammond accounted for all the assets that came into his hands as her agent. Why may not the complainant have accounted likewise? This devastavit might have occurred long before Mrs. Dugan became non compos, and at a time when she was perfectly competent to attend to the affairs of her husband's estate, which she no doubt was at the time of his death, otherwise the testator would not have appointed her executrix. There is no evidence of habits of waste or extravagance on the part of the complainant which might afford grounds for supposing that he squandered this money, or that specific sums of money came into his hands under such circumstances, either in regard to amounts or otherwise, as would justify this court in regarding him as having appropriated this money to his use. In fact there is nothing in the cause to satisfy [**34]  the court that he should be charged with it, for the reasons stated by the defendants.

"In this view, Mrs. Margaret Dugan having been primarily liable to make good this devastavit, whatever estate she left at her decease should be applied in reduction of this judgment, before her securities, or their estates, can be called upon to contribute. Her estate, it appears, was of inconsiderable value, and is in the hands of the complainant and the defendants, in equal shares, and the amount of it must be contributed by the three equally, in reduction of the judgment, and unless they can agree amongst themselves in regard to the value of her estate, it must be ascertained by the auditor of this court. The balance of this judgment must be paid, one-half by the complainant, as one of the securities of Margaret Dugan, on her administration bond, and the other half out of the estate of the other security, Hammond Dugan, in the hands of the complainant and defendants, in equal shares, and sufficient to pay the share of said judgment, for which he was responsible.

"The balance of the said decree that may remain unsatisfied, after the application of the personal estate of Cumberland Dugan,  [**35]  to be derived from the above sources, must be obtained from the real estate mentioned in the said general residuary clause. The court will pass such order, referring this case to the auditor, and decree for the sale of property, as may be necessary to furnish relief to the complainant, upon the principles indicated in this opinion."

The court, accordingly, on the 5th of July 1855, passed a decree for a sale of the residuary estate of the testator, remaining undistributed and undisposed of, to repay the complainant the amount paid by him in discharge of the decree in favor of Gittings and others, and referring the case to the auditor to state accounts, in conformity with the principles decided in the above opinion. From this decree the complainant entered an appeal, on the 29th of September 1855, and the record was transmitted and filed in the appellate court on the 23rd of November 1855. Afterwards, on the 9th of February 1856, and after the auditor's report and accounts came in, the defendants entered an appeal from the same decree, and it was agreed that one common record should be used at the hearing of all the appeals taken by both parties.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

Where a cause is removed from the court of chancery to a circuit court, under the act of 1853, ch. 123, the jurisdiction of the former passes to the latter court, and an appeal may be taken in the latter court, from an order or decree in the cause passed by the chancellor, as if no removal had taken place.

Where an appeal is taken in due time, but the record is not transmitted to the appellate court until after the expiration of nine months, still, under the act of 1842, ch. 288, the appeal must be entertained if it does not appear that the appellant is in default.

A testator, by a clause in his will, ordered and directed, that as early after his demise as may be practicable, his executors should sell such portion of his "bank and other stocks" as shall produce the sum of $ 27,500, and pay therefrom $ 13,750 to each of his two sons. HELD:

That these are demonstrative legacies, which, when the fund on which they are chargeable does not exceed them in amount, are to be treated, in some respects, as specific; they are liable to abate with specific legacies in the payment of debts, and entitled to contribution from them if the fund demonstrated has been so applied to the exemption of specific legacies.

Where there is sufficient personalty for the payment of debts a simple contract creditor cannot resort to the realty for payment, when the realty is devised and is not charged with the debts.

If a specific legacy be taken for the payment of a simple contract debt, the legatee will be entitled to contribution from other specific legacies, but he cannot charge with contribution the real estate which is devised.

Real estate devised is not liable for the payment of debts until after the whole personal estate, including legacies, shall have been exhausted.

One-third of the excess of the whole assets, over the debts and costs of administration, belong to the widow absolutely as purchaser, and where she, as specific legatee, is called on for contribution, such one-third must be deducted from the amount of her specific legacies, and the residue only held liable to contribution.

An executrix retained bank stock unsold, to await the result of a suit, for a large sum, against the estate; large dividends were received on this stock, and there was no evidence it was considered unsafe, or of any ground for apprehending loss, until the sudden failure of the bank, which occurred before the termination of the suit against the estate. HELD:

That there was no devastavit by the executrix in omitting to sell the stock, and the accidental depreciation of its value, though she was directed by the will to sell it as soon after the testator's death as practicable, to pay legacies. 

COUNSEL:
Thomas S.  [**36]  Alexander and John Nelson, for the complainant argued:

1st. That the order of the chancellor, of the 26th of January 1854, is open for review upon the complainant's appeal. 1st. The appeal was entered in the proper forum. The cause was removed, after the passage of this order, from the Court of Chancery to the Circuit Court, and the appeal was entered in the latter court, where the record was, which it is the object of an appeal to bring up. By the Constitution and laws, relating to the removal of cases, these two courts were one and the same as to this case; the Court of Chancery was abolished, but the proceedings in it were not abolished. Upon the removal of the proceedings in this case, the jurisdiction of the Chancery Court passed to the Circuit Court, and the case stood in the latter court precisely as if there had been no removal. 8 Md. 322, Brown vs. Gilmor. 1 Bland, 67, Strike's case. 2nd. The appeal was taken in due time, and that the record was not transmitted within nine months, does not appear to have been the fault of the appellant, and the appeal must therefore be entertained, 9 Gill 440. Hannon vs. Robey. 3rd. But the appeal from the final decree in the [**37]  case passed by the Circuit Court, which was taken in due time, and is free from all objections, brings up for review all previous orders or decrees passed in the cause. Acts of 1830, ch. 185, sec. 1, 1841, ch. 11, and 1845, ch. 367, sec. 3. The final decree meant by these acts is the decree finally disposing of the case, and upon appeal from such decree all previous decrees and orders, whether final or interlocutory are open for review. 3 Gill 138, Dugan vs. Gittings. But the decree of the chancellor was, in fact, an interlocutory and not a final decree, or an order in the nature of a final decree, and is, therefore, clearly open for review upon the present appeal from the final decree. Neither the entry of an appeal from this order and the failure to prosecute it, nor the removal of the cause can affect the right to review the merits of this decree upon this appeal. It was clearly competent for the Circuit Court, at all times before the final decree, and at the time of passing the final decree, to correct errors in any antecedent decree or order, or proceeding in the cause. 6 H. & J. 114, Snowden vs. Dorsey. 12 G. & J. 285, Clagett vs. Crawford. 1 Md. 394, Young vs.  [**38]  Frost. Md. Ch. Pr., 178. 3 Md. 555, Ware vs. Richardson. 3 Md. Ch. Dec., 398, Young vs. Mackall. Ibid, 431, Williams vs. Savage Manf. Co. 16 How., 82, Fourniquet vs. Perkins.

2nd. That the complainant's first and second claims founded upon the fourteenth clause of the will should have been allowed. In this clause the testator in order to equalize the shares of his four children, directs his executors to sell such portion of his bank and other stocks, as shall produce the sum of $ 27,500, and pay therefrom $ 13,750 to each of his two sons. These are demonstrative legacies, which failing the fund upon which they are charged are mere general pecuniary legacies payable out of the residue of the estate, but, to the extent of the fund chargeable, are in the nature of specific legacies; the bank and other stock, are appropriated by the will to their payment, and, to the extent of these stocks, they are specific bequests. 3 Ves. & Bea., 2, Smith vs. Fitzgerald. 1 Merivale, 178, Acton vs. Acton. 2 Wms. on Exc'rs., 993, 995, 999, 1003, 1174. These stocks have been applied to the payment of debts, and we now insist that the complainant's first two claims should have been allowed. 1st.  [**39]  Because real estate passing under a residuary clause of a will ought to be applied to the payment of debts to the entire exoneration of personal estate specifically bequeathed. That there is a residuary clause in this will, is clear from the fact that the testator speaks of it as a residue, charges money on it as a residue; and though there is no residue descending to heirs at law, yet there is a residue devised to those who would be heirs at law in the same proportion as they would take by descent; assuming then that there is a residuary clause, we say the real estate passing by it is to be applied to pay debts to the entire exoneration of specific legacies. 2nd. Because the intention of the testator to apply the proceeds of his bank and other stocks to these legacies, is explicitly set forth in the will for the purpose of producing equality amongst his children; and the charge of the debts upon his realty, not specifically devised, is equally manifest. 3rd. Because the personalty specifically devoted to the payment of these claims, having been applied by the executors to the payment of debts, the legatees are entitled to be substituted to the creditors and paid out of realty not [**40]  specifically devised, and in the event of an insufficiency of this general fund may claim contribution from all other legatees and devisees of the testator.

In support of these positions we refer to Ambler, 127, Hanby vs. Roberts, and the same case in 1 Dickens, 105. 1 Dow. & Clark, 365, Spong vs. Spong, and same case in 3 Bligh N. S., 84. 2 Myl. & Cr., 707, Mirehouse vs. Sciafe. Sugden's Law of Prop., 423 to 426, 64, in Law Lib., 290. These authorities clearly show that our positions are correct where the debts to which the specific legacy has been applied are specialty debts; and the case of Chase vs. Lockerman, 11 G. & J. 204, settles the law in this State in the same way, so far as such debts are concerned. But as the debt paid in this case was a simple contract debt, it is objected that the specific legatee cannot call upon the devisee of the realty for contribution, and the case of Chase vs. Lockerman, is relied upon as sustaining this distinction between simple contract and specialty debts. It is true that in that case the right of contribution as against the devisees of the realty is denied in case the debts to which the specific legacies have been applied are simple [**41]  contract debts, but that question did not as we think arise in the case, and the decision therefore upon this point is but an obiter dictum. Nor is there any reason why such a distinction should exist in this State. In England the specialty debt equally charges personal and real estate, but the simple contract debt does not charge the land, and for this reason the legatee in England cannot cast any portion of the debt by simple contract on the land devised or the land descended. But our acts of 1785, ch. 72, sec. 5, and ch. 80, sec. 7, subject lands descended in the hands of the heir, and land devised in the hands of the devisee, to the payment of debts by simple contract and debts by specialty, in equal degree. These acts are not referred to either by the court or the counsel in the argument of the case of Chase vs. Lockerman. Again, by our testamentary law (act of 1798, ch. 101, sub-ch. 8, sec. 17) specialty and simple contract debts are placed upon an equal footing, and are to be paid without priority or preference. Upon principle, therefore, there is no reason why any such distinction should be observed in this State, and we think this court has so decided in the cases of Magruder [**42]  & Tuck, vs. Carroll, 4 Md. 335, and Alexander vs. Worthington, 5 Md. 417.

3rd. That the chancellor also erred in not allowing out of the residuary realty before distribution thereof amongst the residuary devisees, the complainant's third claim for his proportion of the moneys paid by the testator for the husbands of his two daughters as directed by the fifteenth clause of the will, the payment being admitted. And it is further insisted, that in the event of the insufficiency of such residuary estate, all other interests of the daughters taken under the will are liable for those payments.

4th. In opposition to the appeal taken by the defendants, and in support of the complainant's fourth claim, which is allowed by the decree, we insist:

1st. That the claim of Gittings and others, bound all the estate of the testator in due order of administration.

2nd. That, (for reasons already assigned,) after exhausting the personal estate not specifically bequeathed or appropriated, this claim was payable out of the residuary estate, as well real as personal, in exoneration of the personal estate specifically bequeathed or appropriated. And this exoneration of the specific [**43]  legatee rests as well on the general principle, that the residuary estate, whether real or personal, and whether devised as residue or suffered to descend, is liable for payment of debts in relief of the specific legatee, and of the specific devisee, as on the intent of the testator clearly expressed.

3rd. That there is nothing in the chancellor's opinion which conflicts with these views. He expressly declares that the complainant is entitled to compensation out of the residuary estate, to the extent of his entire payment to Gittings. The only error imputable to the chancellor, consists in his assuming that the Ferry Point lot was liable on any principle and in any state of circumstances to contribution. As that lot was bequeathed to the widow in lieu of dower she was to be treated as a purchaser thereof for valuable consideration, and as between her and the complainant claiming under her on the one hand, and all other legatees and devisees of the testator, on the other hand, this lot was entirely exempt from payment of debts. Act of 1798, ch. 101, sub-ch. 13, sec. 5. 10 G. & J. 113, Gibson, et al., vs. McCormick.

4th. Upon the same principle that the widow is a purchaser [**44]  for valuable consideration of all interests given her in lieu of dower, the other personal property specifically bequeathed to the widow is to be thrown out of the account; and especially is the claim of the defendants, that the value of those specifics shall be applied in satisfaction of the Gittings' claim, inadmissible, since those specifics have, in fact, been distributed to those defendants and the complainant, as the representatives of the widow.

5th. The complainant, as assignee of Gittings and others, became subrogated to the original rights and equities of the original claimants; and in this aspect his claim is to be reduced only by any balance which may be found in the hands of the administrator de bonis non of the original testator.

6th. The complainant denies that the Water street lot, though lease-hold, is liable, as between the legatees and devisees of the testator, to the reimbursement of the payment made by the complainant to Gittings, until after the exhaustion of the entire residuary estate of the testator; and in the event of the exhaustion of such residuary estate, this lot is to be brought into contribution with all other property specifically devised [**45]  by the testator.

7th. It is denied that the claim of the complainant is liable to be reduced by the sum, or any part of the sum, recovered by the administrator de bonis non against Mrs. Dugan, the executrix, and the complainant, one of her sureties. But if that judgment is to be brought into the account it is to be reduced, first, by the value of the personal estate of Mrs. Dugan, which was distributed amongst her children; next, by the value of her estate which came to the hands of her committee; next, by the value of said estate in the hands of her administrator, and lastly, the balance then remaining, if any, is to be apportioned between the complainant and Hammond Dugan, deceased, who was co-surety with complainant for the executrix; so that the complainant may be accountable for only one-half part of said balance and one-third part of the remaining half.

Frederick W. Brune and Wm. Schley, for the defendants argued:

1st. That the decree of the chancellor, of the 26th of January 1854, in so far as it rejected the first three items of claim on the part of the complainant, is not open for review on this appeal. 1st. Because the appeal was not taken in the proper forum.  [**46]  There is no provision by law authorising an appeal in one court from a decree passed in another. By the act of 1826, ch. 200, the appeal must be entered in the court in which the decree is passed, and there is nothing in the acts providing for the removal of causes from the Court of Chancery to the circuit courts, which permits an appeal to be taken in the latter from a decree passed by the chancellor. A party has no constitutional right of appeal: it is a matter of favor granted by acts of Assembly, and must be taken modo et forma therein prescribed. 1 Bland, 17 Ringgold's case. 6 Cranch, 314. Durosseau vs. The United States. 2nd. Because the appeal, if properly taken, was not duly prosecuted, the record not having been transmitted within nine months. Whenever an appeal is taken from a final decree, the record must be brought up within nine months, and as we insist, this decree of the chancellor was a final disposition of the first three items of claim on the part of the complainant. Four different claims are presented by the bill, as distinct from each other as if made by different parties. Three of these the chancellor rejects, and as to the fourth, only directs an account to be [**47]  stated. This is as much a final disposition of the three rejected claims as if the bill had been dismissed as to them, and that such a decree would have been final, this court has decided in Hitch vs. Davis, 8 Md. 524. Did not the absolute rejection of these first three claims materially affect the complainant's rights? did it not determine a question of right between the parties? If it did, then it was the subject of an immediate appeal, and was a final decree within the meaning of the acts of 1830, ch. 185, and 1845, ch. 367, and the present appeal by the complainant was prosecuted too late, the complainant himself being answerable for the delay. 5 Md. 368, Sample vs. Motter. Acts of 1841, ch. 46. 1842, ch. 288. 3rd. Because the only view in which the chancellor's decree can be considered as open on this appeal is, that the circuit court erred in following the decision of the chancellor, and the appeal from the decree of that court, taken by the complainant, on the 29th of September 1855, brings up for review all previous decrees and orders in the cause, under the 3rd sec. of the act of 1845, ch. 367. But the decree of the circuit court, from which the complainant appealed,  [**48]  is a decree simply directing an account to be taken, and referring the case to the auditor for that purpose, and is not, therefore, "the final decree or order" meant by the section of the law referred to.

2nd. That if the chancellor's decree is open for review, in reference to the rejected claims, it should be affirmed for the reasons assigned in his opinion, in 4 Md. Ch. Dec., 139 to 146, and others hereinafter presented. The legacies in the fourteenth clause of the will are not charged upon the real estate, either expressly or by implication. The personal estate is the primary fund for their payment, and the real estate, in the hands of the devisee, is never charged with such payment, unless the intention so to charge it is expressly declared or fairly and plainly to be inferred from the terms of the will. 2 G. & J. 32, Simmons vs. Drury. 10 Do., 143, Stevens vs. Gregg. These cases decide, that even a charge upon the land devised does not, in equity, exempt the personal estate from primary liability for the payment of debts and legacies. Besides, under the facts in the record and the various acts of the complainant, and especially by reason of the proceedings between the [**49]  complainant and his sisters for a partition of Hammond Dugan's property, the complainant is estopped from setting up any claim, as one of Hammond Dugan's representatives, against his sisters, by reason of the bequests in favor of Hammond, under the fourteenth and fifteenth clauses of the will. And in reference to the entire claim of the complainant, under the fifteenth clause of the will, being the third claim set up by his bill, we think it is conclusively disposed of by the chancellor, and for the reasons assigned in his opinion, in 4 Md. Ch. Dec., 144, 145.

3rd. That the chancellor in decreeing in favor of the complainant, in reference to the fourth item of his claim, only asserts a right of contribution in his favor against the other parties to the partition, referred to in the decree, to make good to him a proportion of the loss which he suffered by reason of the liability of the Ferry Point lease-hold lot to the Gittings' claim, and while we may not be able successfully to controvert this principle of contribution, we deny, in accordance with our exceptions in the chancery court, that such a claim for contribution is embraced in the averments of the bill. But if the defendants [**50]  are liable for such contribution under the bill, we further insist, their liability can only be to contribute to make good to the complainant, as owner of the Ferry Point lot, a portion of its value of $ 2500 under the partition, and only to the extent to which this lot was liable in the hands of complainant for the Gittings' claim; and that the defendants, who were parties to this partition, cannot be held liable for any contribution, until the whole personal estate of the testator, unadministered, and not specifically bequeathed, including the full amount of the devastavit, for which also the complainant, as surety, was responsible, is first applied in reduction of the amount paid to Gittings, and if any thing should then be due to the complainant on account of his payment, the parties to the partition should not be held to contribute to pay the same, until the Water street lease-hold lot, bequeathed to the complainant, and the other specific bequests which were equally liable with the Ferry Point lot for the Gittings' claim, shall be brought into contribution, and the defendants, Rebecca and Cordelia, can only be held liable for two-thirds of the amount thus finally chargeable against [**51]  the Ferry Point lot, which two-thirds, in no event, can exceed two-thirds of $ 2500, the value of the lot under the partition.

Under the appeal taken by the defendants we insist:

1st. That the decree of the circuit court was erroneous in misconstruing and disregarding the opinion of the chancellor, which was the law of this case until properly brought up for review by this court. When the cause was removed into the circuit court, that court was bound to follow the decision of the chancellor. 1 Bland, 57, Strike's Case. 2 H. & G., 191, Strike vs. McDonald. 2 Paige, 413, Townshend vs. Townshend.

2nd. That this decree was also erroneous in asserting that the real estate, devised under the residuary clause of the will, was applicable to the payment of the amount paid by the complainant on the Gittings' claim, which was a simple contract debt of the testator, before and in exoneration of the lease-hold estate bequeathed to the complainant. And also in asserting, that all the real property embraced in the last clause of the will, including those portions devised by specific description, such as the reversion of the ground-rents and the lands in Baltimore county, should be [**52]  first applied to refund to the complainant the amount paid on the Gittings' debt in exemption of the lease-hold property bequeathed to and acquired by the complainant, while even his bill admits the liability of his property for the whole amount of Gittings' claim, and only asserts that the real property, devised in trust for the respondents, "is equally chargeable" with this claim.

In discussing this point it is worthy of remark, that the bill only seeks contribution, and does not pretend that the real estate, in the hands of the devisees, is primarily liable to the entire exoneration of the specific legacies. Again, the legacies in the fourteenth clause of the will, in reference to which this contribution is asked, are general pecuniary, demonstrative legacies, specific in so far as they point out the fund from which they are to be paid, but general inasmuch as no particular part of the fund is appropriated to their payment, and beyond the fund demonstrated, they are mere general pecuniary legacies, payable out of the residue of the estate. Smith on Real Prop., 824, in 89 Law Lib., 534. 3 Richardson's Eq. Rep., 84, 85, Hull vs. Hull. Ward on Legacies, 370. Powell on Devises,  [**53]  22 Law Lib., 381. 1 Roper on Legacies, 153. 2 Wms. on Ex'crs, 994, 1540. In the case of Chase vs. Lockerman, 11 G. & J. 202, the general principle, that the personal estate is the natural and primary fund for the payment of the simple contract debts, and that devised lands shall not contribute, with specific bequests, to pay such debts, is most distinctly recognized, while in that case the court held, that there was a right of contribution against devisees in favor of specific legatees to pay specialty debts. The cases of Magruder vs. Carroll, 4 Md. 335, and Alexander vs. Worthington, 5 Do., 471, cannot be considered as decisions adverse to the principle contended for, because in the first case the court say, they pass no opinion in regard to the primary liability of the negroes to the real estate in payment of the debts of the deceased; and in the second, that: "It will not be necessary to remark on the distinction supposed between the specialty and simple contract creditor; it is averred that Carroll died in debt for the land purchased by him after the date of the will, and independent of this averment, if the equity could have turned on the supposed distinction, the cause [**54]  would have been remanded with liberty to the party to amend," thus expressly waiving a decision upon this point. The distinction set up in Chase vs. Lockerman, that the rule of contribution, between specific legatees and devisees, is generally confined to specialty debts, is recognized in numerous authorities. 1 Story's Eq., secs. 564, 565, 570, 571. 2 Powell on Devises, 667, 668, in 22 Law Lib., 356, 357. 2 Spence's Eq., 839. 4 Kent's Com., 421. 2 Jarman on Wills, 546, 547, 548, and notes. And that devised lands shall not contribute, with specific bequests, to pay such debts: See 9 Grattan, 549 to 554, Elliott vs. Carter. 5 Barr., 356, Hoover vs. Hoover. 3 Rawle, 237, Walker's Estate. 2 Dev. Eq. Rep., 173, Robards vs. Wortham. 3 Murphy, 194, Miller vs. Harwell. 18 Ves., 138, Tower vs. Ld. Rous. 9 Do., 453, Watson vs. Brichwood. 12 Price, 324, Noel vs. Noel. 1 Brown's Ch. Rep., 454, Ancaster vs. Mayer, and authorities cited under this case in White's Eq. Cases, in 65 Law Lib., 442 to 449. 1 Paige, 190, Rogers vs. Rogers, and same case in 3 Wend., 518. 1 Comstock, 122, Hoes vs. Van Hoesen. 3 G. & J. 157, Hoye vs. Brewer. 4 Do., 302, Wyse vs. Smith. 6 Do., 444, Griffith vs. Frederick [**55]  Co. Bank. 6 Gill 316, Cornish vs. Wilson. Some of these authorities have followed the construction in favor of the priority of devisees which may be given to the fifth resolution in Hazelwood vs. Pope, 3 Peere Wms., 324; and this preference of devisees was also maintained by the decision of the vice-chancellor, in Cornewall vs. Cornewall, 12 Simons, 303, but in England the law is now settled, in conformity with Chase vs. Lockerman, that specific devisees and legatees shall equally contribute to the payment of specialty debts. 2 Collyer, 505 to 509, Tombs vs. Roch. 1 Jones & Latouche, 466, Young vs. Hassard. 14 Simons, 654, Gervis vs. Gervis.

It must be borne in mind that this is the case of a specific legatee, who has received his legacy through a devastavit of the executor, and who has subsequently been obliged, under legal proceedings, to pay a simple contract debt of his testator, for which his legacy was liable, in the hands of the executor, and who now claims, from devisees of the land, contribution for such payment, while neither the legacy so liable, nor any bequest in the will, nor the debts of the testator, are charged on the specific or residuary devises. Stevens [**56]  vs. Gregg, 10 G. & J. 147, and numerous authorities which might be cited, are clear to the point, that a mere charge of land with debts or legacies, will not ordinarily disturb the primary liability of the personalty, for their payment. The authorities are also clear, that every devise of land is specific. Ambler, 173, Forrester vs. Leigh. 1 Peere Wms., 679, Clifton vs. Burt. 5 Ves., 359, Keeling vs. Brown. 7 Do., 147, Howe vs. Ld. Dartmouth. 1 Ves. & Bea., 174, Hill vs. Cock. 2 Mylne & Craig, 705, Mirehouse vs. Scaife. 2 Wms. on Excrs., 847. The court below misconstrued the case of Spong vs. Spong, 1 Young & Jervis, 300, and 3 Bligh, 84, which certainly cannot be considered authority for the point, that "a residuary devise of real estate is not a specific devise," and still less for the proposition that residuary real estate of a testator is the proper fund to be resorted to for the payment of debts, after exhausting his personal estate not specifically bequeathed, and in exoneration of specific bequests. That case, as decided in the House of Lords, is only an authority that an express charge of legacies, such as that contained in that will, must be construed a charge on the residue [**57]  alone, in exemption of the specific devises and bequests. See, on this case, 2 Jarman on Wills, 530. 1 Jones & Latouche, 471, Young vs. Hassard. Sugden on Property, in 64 Law Lib., 290 to 293.

3rd. That the decree was further erroneous in deciding that the complainant is entitled to an account against the administrators de bonis non of Cumberland Dugan, for the amount in their hands, while the defendants contend this is a claim only cognizable in a court of law.

4th. And also in deciding that the complainant was not, under the facts and circumstances of this case, primarily liable for the devastavit of his mother, as executrix; and in contending for the primary liability of the complainant, the defendants insist that the devastavit is not to be measured by the amount of the judgment confessed, but to this there should be added the amount of the loss upon the Franklin bank stock, which the testator directed to be sold "as early after his demise as practicable." And that as the amount of the devastavit alone exceeded the balance of the Gittings' claim paid by the complainant, there was thus no proper legal liability of the leasehold lots bequeathed, or the realty devised for [**58]  the Gittings' claim. 2 Wms. on Excrs., 1283, 1285. 1 Salk., 153, Anon. 5 Ves., 736, Omerod vs. Hardman. 11 Wend., 364, Schultz vs. Pulver. 3 Myl. & Cr., 496, Clough vs. Bond. 6 G. & J. 445, Griffith vs. Frederick Co. Bank.

5th. That in this proceeding the complainant cannot make Margaret Dugan's representatives liable for any devastavit, even if she should be considered primarily liable therefor, because such liability is properly cognizable in a court of law, but if cognizable in this court, then the defendants insist that the complainant is, under the circumstances of this case, estopped from setting up such a claim.

6th. That in this proceeding the complainant cannot make the representatives, or the estate of Hammond Dugan, responsible for any part of the devastavit, as such a claim is properly cognizable in a court of law; but if cognizable in this court, then the defendants insist that the complainant is, under the circumstances of this case, estopped from setting up such a claim. There is no evidence of the insufficiency of the personal estate of Mrs. Dugan to pay the amount of the devastavit, and no part of it can, therefore, be charged against the sureties on [**59]  her bond.

7th. That the decree was erroneous in decreeing an immediate sale of the property therein mentioned, for the payment of the balance of the payment to Gittings, after the application of the personal estates of Cumberland and Margaret Dugan, instead of waiting until such balance should be ascertained by the auditor.

8th. If the principles of the decree of the circuit court should be sustained by this court, the defendants, Hollins of Rebecca, and Hollins of Cordelia, will then set up a claim against the complainant as devisee under the residuary clause, to make good to them the value of the house taken from them, as specific devisees thereof, by reason of the claim of Gittings, under the contract mentioned in the case of Dugan vs. Gittings, against their testator, together with interest on such value from the death of their grandmother, which claim is set up by them in their answers, but entirely disregarded in the opinion and decree of the circuit court.

9th. If this court should hold that the complainant is entitled to contribution from the defendants and Hammond Dugan, as devisees of the realty, on account of the payment by complainant of the Gittings' claim,  [**60]  the defendants will deny that such contribution should extend to affect any portion of Hammond's land acquired by them under the partition thereof, but if any land so acquired should be held liable to such contribution, the defendants will then contend that such liability must be subject to the claim of the owner of the land so held liable against the complainant, as one of the parties and covenantors to the partition, for indemnity for a portion of such liability. 4 Kent's Com., 475. 2 Hilliard on Real Property, 360. 9 Gill 19, Morris vs. Harris.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*74]  BARTOL, J., delivered the opinion of this court.
Before considering this case on the merits, it is necessary to dispose of a preliminary question, involving the appellant's right to have the chancellor's order, of the 26th of January 1854, reviewed on his appeal.
It appears that the complainant, in his bill, asserted four items of claim. The chancellor, in his opinion filed with the above mentioned order, examined them all, and disallowing the first three, passed an order referring the case to the auditor to state an account in relation to [**61]  the fourth. Before the account was taken, or any thing further done in the cause, the proceedings were removed, on the 7th day of March 1854, to the circuit court for Baltimore city, under the act of 1853, ch. 123; and the complainant, in that court, entered his appeal from the decree of January 1854, on the 26th day of May of that year. Further proceedings were then had, and the circuit court, on the 5th day of July 1855, passed a decree for the sale of certain property, to satisfy the fourth item of the complainant's demand. The complainant appealed from that decree on the 29th of September 1855. The record was filed here on the 23rd of November 1855, within nine months from the date of the complainant's last appeal; but after the lapse of that time from the 26th of May 1854, when the complainant's first appeal was entered.
The objections taken, on the part of the defendants below, to the complainant's appeal are, 1st, that he had no right to appeal at all, from the chancellor's decree, after the cause had passed to another tribunal; 2nd, that if the appeal was well taken, the record should have been transmitted within nine months from the entry of the appeal, the order [**62]  appealed from being final in its character, as to the three rejected claims; and 3rd, that the court cannot, under the appeal of September 1855, review the proceedings as to the rejected claims.
It is, doubtless, true, that generally an appeal must be entered in the court where the judgment or decree is passed. In 

 [*75]  most cases it can be entered nowhere else. But here the question is, how far this general doctrine has been modified by the acts authorising the removal of causes from one jurisdiction to another. This court has said, in Brown vs. Gilmor, 8 Md. 322, that where a cause is removed, under the act of Assembly, the jurisdiction of the chancery court passes to the circuit court, as if no removal had taken place. It must be considered as a continuance of the same cause. This is a fair interpretation of the acts, and of the design of the legislature in passing them.
The act of 1826, ch. 200, gives the right of appeal; the legislature did not mean to take away that right, by authorising the removal of causes. The object was not to hinder, or delay, or restrict remedies, but to promote the ends of justice; the acts not reserving expressly,  [**63]  yet not taking away any right which suitors would have enjoyed, if the case had not been removed. If the construction were otherwise, the party obtaining the decree might, by causing the papers to be transmitted to another court, immediately after the decree, cut off the opposite party's right of appeal altogether. Surely the law was not designed to produce such consequences, and a construction that may lead to this injustice cannot be adopted.
The first ground of objection, on the part of the appellees, being insufficient, and the appeal of May 1854 being in time, we are to inquire, secondly, how the filing of the record here, after the expiration of nine months, affects the question. And this point, we think, must be ruled against the appellees, upon the authority of Hannon vs. Robey, 9th Gill 440, it not appearing that the appellant is in default.
The propriety of the decree of January 1854 being properly before us, on the appellant's first appeal, and there being no question as to the other, it is unnecessary to decide whether that decree is such a one as, under the acts of Assembly, could be reviewed upon the complainant's appeal of September 1855. We proceed, therefore,  [**64]  to consider the questions presented by the record, upon the pleadings and proofs, under the appeals of both complainants and respondents.
The bill filed in this cause, by Frederick J. Dugan, the appellant, 

 [*76]  seeks to recover certain sums of money alleged to be due to him in the two-fold character of legatee of Cumberland Dugan, and as creditor, by subrogation to the rights of John S. Gittings, who had recovered a decree for the amount of a simple contract debt due him from the testator; the complainant having paid the balance due on said decree, and taken an assignment thereof, on the 18th day of February 1847.
Four distinct claims are presented by the complainant:
1st. As legatee of the sum of $ 13,750, chargeable on the bank stock and other stock of the testator, under the 14th clause of the will, with interest thereon.
2nd. As representative of Hammond Dugan, deceased, for one-third of legacy of the same amount given to him by the same clause of the will; said Hammond having devised all his estate and property to his mother, Margaret Dugan, and she having conveyed the same, by deed dated the 25th day of March 1841, to the complainant and his two sisters, [**65]  Rebecca and Cordelia M. Hollins, in equal proportions.
3rd. For one-fourth in his own right, and one-third of one-fourth, under Hammond Dugan, of payments made by the testator, as security of Robert and John S. Hollins, under the 15th clause of the will.
4th. For two-thirds of the sum of $ 9772.31, with interest from the 18th of February 1847, being the amount paid by complainant on the decree in favor of John S. Gittings and others, as admitted in statement of facts filed the 8th of June 1853.
We shall first dispose of the third item of the complainant's claim, by simply remarking that we concur with the late chancellor, in the construction of the 15th clause of the will, on which it is founded; and, for the reasons expressed in his opinion of the 26th of January 1854, we think that item of claim must be disallowed.
To determine the equitable rights of the complainant upon the other items of his claim, is somewhat more difficult. We have given them our most careful and anxious consideration, and believe that the difficulty in arriving at clear and satisfactory conclusions on the questions involved, arises from the complex 

 [*77]  relations which the parties [**66]  bear to each other, and to the several funds sought to be charged, rather than from any uncertainty in the legal principles on which they depend. These are plain and well established, and a brief statement of them at the outset will aid us in arriving at the equitable rules which govern the case.
1st. It is clear that the legacies given to the complainant and Hammond, by the 14th clause of the will, are not to be treated as mere general pecuniary legacies. They are what are called demonstrative legacies, not strictly specific, but in the nature of specific legacies; that is to say, to the extent of the value of the fund or property on which they are chargeable, (when that does not exceed the amount of the legacy,) they are to be treated, in some respects, as specific; liable to abate with specific legacies in the payment of debts, and entitled to contribution from them, if the fund demonstrated has been so applied, to the exemption of specific legacies. See 1 Roper on Legacies, 224, 237, 363, 364, (edition of 1848,) 2 Wms. on Ex'crs., 995, 1174, (edition of 1849,) and the cases cited by those authors. The conclusion from these authorities is, that as the [**67]  stock on which these demonstrative legacies were charged, has been applied to the payment of debts, the legatees are entitled to a ratable contribution from all the specific legacies which have not been so applied.
2nd. This court considers the law as settled in Maryland, that if there be sufficient personalty for the payment of debts, a simple contract creditor cannot resort to the realty for payment, when the realty is devised, and is not charged with the debts.
3rd. If a specific legacy be taken for the payment of a simple contract debt, while the legatee would be entitled to contribution from other specific legacies, he cannot charge with contribution the real estate which is devised.
These last two rules were expressly recognized and asserted by the Court of Appeals, in the case of Chase vs. Lockerman, 11 G. & J. 185, decided sixteen years ago. That case has not been impugned, as was argued at the bar, by the decision in Alexander vs. Worthington, 5 Md. 471; and has so 

 [*78]  long been considered as established law in Maryland, that this court is not disposed to disregard its authority.
Now let us apply these rules [**68]  to the case before us. It is obvious that inasmuch as the debts, to the payment of which the demonstrative legacies have been applied, were simple contract debts, the complainant is not entitled to subject any of the real estate of Cumberland Dugan to contribution for the payment of any claim which may be due him as legatee. Nor is any portion of said real estate (the same having all been devised) liable for any claim of the complainant as creditor, until after the whole personal estate, including the legacies, shall have been exhausted.
If, upon a proper account being taken, it shall appear that the whole personal estate of Cumberland Dugan, specifically bequeathed, and the bank and other stocks, with the dividends thereon, charged with the demonstrative legacies, be more than sufficient to pay all the balance of the debts due and owing by him, after first applying to such payment the general assets, then the complainant will be entitled to ratable contribution from the specific legacies on his one-half of said demonstrative legacy, and on the one-third of said Hammond Dugan's half of the same legacy, estimating said demonstrative legacy not at the sum named in the [**69]  will, but at the amount of the actual value of the stock pledged for its payment, and the dividends thereon, and in this case such value is the price for which the stock was actually sold.
In estimating such contribution, the same must be charged ratably on each parcel of personal property specifically bequeathed, including the lot of ground on Water street, given to the complainant himself, and the specific legacies given to Margaret Dugan, the mother, except that if it shall appear that the whole assets exceed the whole amount of debts due by the estate, and the expenses of administration, the one-third of such excess would belong absolutely to the widow, as purchaser. See 10 G. & J. 113.
And in charging such contribution on the personalty specifically given to her, such sum so ascertained as belonging to her absolutely, must first be deducted from the amount of her 

 [*79]  specific legacies, and the residue thereof, only, is liable to contribution. And inasmuch as all the specific legacies of Margaret Dugan, including the Ferry Point lot, have passed to the complainant and his two sisters, Rebecca and Cordelia, in equal proportions, and in the same proportions [**70]  they represent the said Hammond's interest in the demonstrative legacy, the several contributions chargeable on said specific legacies must be apportioned between them in like proportions, and the value of the two lots, above mentioned, is to be determined by their appraisement in the inventory.
By the application of these rules the rights of the complainant, in respect to the first and second items of his claim, may be ascertained. These principles are necessary to be decided, in order to adjust the accounts between the parties, although it may appear that the complainant has already received, as specific legatee, more than he is entitled to, in that character, under the will.
The principles already stated, will also indicate the mode in which the complainant's claim as creditor, under the assignment from Gittings, is to be ascertained and adjusted.
The amount paid by him to Gittings was $ 9772.31, and that sum, with interest from the 18th of February 1847, constitutes the basis of the fourth item of complainant's claim.
This court concurs in the opinion of the judge of the circuit court, that the whole balance of the personal estate of Cumberland Dugan, remaining unadministered,  [**71]  is first applicable to the payment of this debt. This balance consists of two items:
1st. The sum remaining in the hands of the administrators de bonis non, which is admitted to be $ 260.92. For that sum they are liable to the complainant in this suit, with interest thereon, from the 10th day of January 1849; their accounts showing that the same has been in their hands since that time, and that no interest has been charged thereon.
2nd. The sum for which Margaret Dugan, the executrix, is chargeable for devastavit; and it is necessary to determine the amount of such devastavit.
It has been contended, in the argument, that she is justly 

 [*80]  chargeable with the loss which occurred by reason of the depreciation in the value of the Franklin bank stock, on the ground that she was guilty of laches and neglect in not selling the same, according to the directions of the will.
We do not concur in that view; the record shows that letters testamentary were granted to her on the 3rd day of December 1836; that on the 3rd day of January 1837, the suit of John S. Gittings and others was instituted, claiming large sums of money from the estate. There was certainly no breach of [**72]  duty by the executrix in retaining the stock unsold, to await the determination of that suit.
It does not appear that the stock was considered an unsafe investment; large dividends accrued and were received thereon, and there is no evidence in the cause of any ground for apprehension of loss, until the sudden failure of the bank, which occurred as early as January 1841, before the final determination of the suit of Gittings.
Besides, the respondents, who were interested as residuary devisees and legatees, had a right, at any time, equally with the complainant, to compel a sale of the stock, by instituting proper proceedings for that purpose.
All the parties interested, however, stood by without taking any action to enforce a sale.
For these reasons this court considers that there was no devastavit by the executrix in her omission to sell the bank stock, and the accidental depreciation in its value.
We are of opinion that the devastavit chargeable upon the executrix, is to be measured by the amount of the judgment recovered against her and her sureties, amounting to the sum of $ 4710.21, with interest from the 4th of June 1846. We are also of opinion that the said judgment [**73]  for devastavit cannot properly be charged, for any part of it, against the sureties of said executrix. It is very evident, from the proofs in the cause, that her individual estate was ample to pay the amount of the devastavit, and as it does not appear that any part of it was collected by the administrators de bonis non, and as all her property, which was chargeable therefor, passed to the complainant and his two sisters, Rebecca and Cordelia, in 

 [*81]  equal proportions, the said devastavit ought to be charged, in equal proportions, to the said complainant and his said two sisters, to the exoneration of the sureties. One-third, therefore, of the said judgment for devastavit is to be deducted from the said claim of the complainant.
After applying to the payment of the said Gittings' debt the said balance in the hands of the administrators de bonis non, and the one-third of the amount of said judgment for devastavit, the balance of said debt is chargeable on the personal estate, only, of Cumberland Dugan, deceased; and for its payment the several legacies must contribute their just and ratable proportions.
Without reversing or affirming on either [**74]  of the appeals, we remand the cause for further proceedings, under the act of 1832, ch. 302.
Cause remanded.
NOTE.--The Reporter has been requested, by the Judges who decided this case, to state, that the court is not to be understood as intimating any opinion on the question, whether if a demonstrative legacy be taken for the payment of specialty debts, the legatee would be entitled to claim contribution from the realty, in the same manner as a specific legatee? This question does not arise in this case, and the court expresses no opinion thereon.  

33 of 47 DOCUMENTS 

JOHN H. BERRY vs. WM. H. MCLEAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 92; 1857 Md. LEXIS 25 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellant against the appellee and another for money paid, laid out and expended by the plaintiff for the defendants, and at their special instance and request. The appellee, who was alone returned summoned, plead non assumpsit.

Exception. The facts of the case, and the defendant's prayer, to the granting of which, by the court below, (FRICK, J.,) the plaintiff excepted, are fully stated in the opinion of this court. The verdict and judgment was in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Upon the dissolution of a partnership, it was agreed in writing, between the retiring partner and the others, that the debts of the firm should be paid by the latter, which they failed to do, and one of them applied for the benefit of, and was discharged under, the insolvent laws, before some of these debts became due. In consequence of this failure, the retiring partner, being liable to the creditors, paid them subsequently to the insolvent's discharge, and then sued the insolvent for the amount so paid. HELD:

That, under our old insolvent system, the plaintiff could not, for the debts which became due and were paid after the discharge, have proved a claim against the insolvent's estate, and could, therefore, recover for such payment, notwithstanding the defendant's application and discharge.

A contract to pay debts, not stating in terms when they are to be paid, and some of them are due and payable at the date of the contract, and others subsequently, only requires the payment of the latter when they respectively fall due, and the former within a reasonable time. 

COUNSEL:
Jno. Prentiss Poe and Levin Gale for the appellant, argued:

That the instruction granted by the court below was erroneous, because the plaintiff had no right of action or debt due to him, until the McLeans failed to pay the debts due the creditors of the firm, and he, the plaintiff, paid them, and certainly not until the debts had become due to the creditors, and the McLeans, by not paying them, had broken their contract with the plaintiff. Until then the plaintiff had no ground to complain, and no debt or right of action which he could prove against [**2]  the insolvent's estate, and consequently the discharge which was granted on an application made before that time, could not operate to discharge his subsequently accruing claim. The test whether the discharge be available or not, is, was the debt provable against the insolvent's estate, under the insolvent laws? 2 Gill 173, Wharton vs. Callan; and the case of Harris vs. Oliver, therein cited. Gow. on Part., 323. 1 Johns. Cases, 73, and 2 Caines' Cases, 310, Frost vs. Carter. 9 Johns. 127, Lansing vs. Prendergast. 6 Do., 126, Buel vs. Gordon. 15 Do., 467, Mechanics Bank vs. Capron. 6 Cushing, 225, Bennett vs. Bartlett. 1 Hy. Bl. Rep., 640, Brooks vs. Rogers. Ibid, 433, Mills vs. Auriol. 4 Adol. & Ellis N. S. 393, (45 Eng. C. L. Rep.,) Toppin vs. Field. 9 Barn. & Cres., 145, (17 Eng. C. L. Rep., 344,) Boorman vs. Nash. 8 East, 318, Wadham vs. Marlowe. 4 Term Rep., 94, Auriol vs. Mills. 2 Scott, 266, Thompson vs. Thompson. 4 Maule & Selw., 333, Welsh vs. Welsh. 2 Cowp., 525, Taylor vs. Mills. Douglas, 97, Cotterel vs. Hooke. 7 How., 272, Mace vs. Wells. 2 Wilson, 13, Chilton vs. Whiffin. 1 Term Rep., 599, Fall vs. Jones.

Cornelius McLean for the appellant:

The case of Wharton [**3]  vs. Callan has never received the assent of the profession, so far as the grounds of the decision appear, but as there was no opinion filed, it is impossible to say whether the court looked upon the endorser who paid after insolvency as a mere surety with whom no contract with the insolvent existed before insolvency, or whether they intended to establish the doctrine that the kind of suretyship involved, in an ordinary business endorsement, was sufficient to enable the endorser to recover from the insolvent on payment on the note. That such had not, up to the decision referred to, been considered the true nature of an endorsement for value, there can be no doubt, because accommodation endorsers had been allowed to recover only on the ground that no contract existed until the time of payment. It is evident, however, that Wharton vs. Callan was decided solely upon the ground of suretyship; for the replication alleging that the plaintiff was surety for the insolvent, was demurred to, and the allegation of suretyship, therefore, admitted. The present case does not come within either the letter or spirit of that decision.

1st. There is no suretyship in this case. The appellant, the [**4]  appellee, and George W. McLean, were jointly bound, as partners, to pay certain debts. By the terms of the dissolution, the appellant retired from the firm, and the others took the assets and agreed to pay the debts, in consideration of being left in charge of the business and assets. Here, then, was a positive contract to do a certain thing, in consideration of another thing, which cannot be distinguished from any other contract. Most of the cases cited on the other side, are cases of suretyship; others are cases of covenants, which are not embraced in the English bankrupt acts, whereas our act of 1805, ch. 110, sec. 5, discharges the applicant "from all debts, covenants, contracts, promises and agreements due from, or owing or contracted in his individual, as also in a co-partnership capacity, by him," at the time of his application.

2nd. This is no contract of indemnity, but only a contract to pay, and in that respect this case is identical with that of Dorsey vs. Dashiell, 1 Md. 201, in which the distinction between the two kinds of contracts is very clearly and precisely shown. See, also, on this subject, 11 Ala., 702, Taliaferro vs. Brown; 3 Denio, 326, Churchill vs.  [**5]  Hunt; both referred to by the court in Dorsey vs. Dashiell, in this connection. 7 Wend., 499, Ex-parte Negus.

2rd. Even if this were a contract of indemnity, it would not alter the law, inasmuch as there is not now any question of limitations. Whenever that question arises, it is important to ascertain the nature of the contract in this respect. It has been well decided, that on contracts of indemnity, limitations run only from the time of payment, just as they run against a promissory note, from the time of maturity. But when I contract to indemnify another, that contract is as absolute as a contract to pay another money; and there certainly is no reason for saying that the former is not discharged by insolvency when the latter is discharged.

4th. If the contract between the parties was, as has been decided in Dorsey vs. Dashiell, to pay the debts of the partnership, and they did not pay in a reasonable time, or, by asking for the benefit of the insolvent laws, declared their inability to pay, and asked to be discharged from their contract to pay, the plaintiff could undoubtedly have proved his debt or claim, under the insolvent proceedings, by showing the amount of the [**6]  debts which the appellee had not paid under this contract, which would have been a good claim under the proceedings against the insolvent's assets. It is the same as the case of a promissory note not due at the time of the application. Our insolvent law has provided for a release from all contracts, and when a contract exists at the time of the application, there is no reason, whatever, why the person that claims under it should not be entitled to a portion of the assets in insolvency. There are, undoubtedly, claims which it would be difficult to ascertain, but there is no impossibility, and in this case there would have been no great difficulty.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*96]  ECCLESTON, J., delivered the opinion of this court.
This is an action of assumpsit, brought by John H. Berry against William H. McLean and George McLean. The latter was not taken. The other defendant appeared and pleaded non assumpsit.
Prior to the 1st of October 1846, the appellant and William H. and George McLean were partners, trading under the firm of William and George McLean & Co. On that day the copartnership was dissolved,  [**7]  the appellant retiring from the firm. On the dissolution taking place articles of agreement were entered into, providing, among other things, that the debts of the firm should be paid by William and George McLean. Sundry debts, to a large amount, became due and payable at various times between the dissolution and the spring of 1847, and William and George McLean failed to pay them. In consequence of which Berry, remaining liable to the creditors, paid to them, at various times between April and December 1847, an amount equal to five per cent. on their claims, with an understanding that the creditors would not require any further sum from him. Previous to those payments, on the 23rd of December 1846, William H. McLean, the appellee, applied for the benefit of the insolvent laws, and was subsequently discharged. The greater part of the debts on which Berry made payments, and for which he claims to recover in this case, were not due and payable by the firm when William H. McLean became an insolvent petitioner.
The court, at the instance of the defendant, granted the following instruction to the jury: "That if they believe from the evidence, that any of the sums, paid by plaintiff,  [**8]  were on account of debts owing by the firm of William and George McLean & Co., before the execution of the assignment executed to R. M. McLean, and before the application of the said William H. McLean for the benefit of the insolvent laws of the State, that the said defendant did apply for the benefit thereof, and was finally discharged before the said payment by the plaintiff, the plaintiff is not entitled to recover for any such sum of money as may have been so owing, before said deed of assignment and the said application, except subject to the 

 [*97]  discharge of the said defendant, notwithstanding the jury may find from the evidence that such sums of money were not payable by the said William and George McLean & Co., until after the application of the said William H. McLean for the benefit of the said insolvent laws."
The verdict and judgment being in favor of the defendant, the plaintiff appealed. And the question presented for us to decide is, whether the court did wrong in granting the prayer of the defendant?
As the application of William H. McLean, for the benefit of the insolvent laws, was made on the 23rd of December 1846, the act of 1854, ch. 193, does not apply [**9]  to the present case, his petition having been filed under the former act of 1805, ch. 110, and its supplements.
The case of Wharton, et al. vs. Callan, 2 Gill 173, was decided under the old system; and the principle there adopted is, that if A gives his note to B, who passes it away for value, and subsequently pays it, although the maker is released, under the insolvent laws, after the note falls due, but before it is paid by B, he may maintain an action against the maker for money paid for him. There is no report of the court's opinion stating the grounds of the decision, but we understand it was based upon the case of Harris vs. Oliver, decided on the Eastern Shore, but not reported, except so far as what is said of it on page 178 of 2 Gill. There it is stated: "The note was made for the accommodation of the endorser, who, after his release as an insolvent debtor, was offered as a witness for the maker of the note; and it was held, as the witness would be liable over to the defendant, who offered him, upon his paying the note, he was incompetent."
In Gow on Partnership, 323, it is said: "Formerly, where the claim of an individual partner originated [**10]  in his having discharged joint debts, it was essential, in order to entitle him to prove against the separate estate of his bankrupt partner for his proportion, that the debts should have been discharged, and the claim should have arisen antecedently to the bankruptcy. For if the right of calling upon the bankrupt partner for contribution did not accrue until after he became bankrupt, 

 [*98]  the only redress the solvent partner had, was by action at law or by bill in equity." But by Sir Samuel Romily's act this rule was changed, so that the debt, if paid after the bankruptcy, could not be made the foundation of an action, but must be proved under the commission.
The rule, as first stated by Gow, is supported by the case of Wright vs. Hunter, 1 East, 20, and same case in 5 Ves. 792, to which he refers.
Speaking in relation to the right of the solvent partner to recover from his bankrupt partner his share of the debt paid after the bankruptcy, to the creditor of the partnership, notwithstanding the bankrupt had obtained his certificate, Lord Kenyon, C. J., says, on page 30 of 1 East: "I cannot distinguish this from the case of a surety who is [**11]  called upon to pay money for his principal after a bankruptcy, in which case there is no doubt but that the money may be recovered back from the principal, notwithstanding his certificate." And in this the other three judges, Grose, Lawrence and Le Blanc, all concur, the first two using language very much like that of the chief justice, in reference to the similarity of the case to that of a surety.
The result was a judgment in favor of Wright, the plaintiff, for £  168, 13s., 4d., that being the sum paid by him, to the creditors of the partnership, after the bankruptcy; which sum should have been paid by three of the partners, of whom Hunter, the defendant, was one. The suit being against him alone, the court, at first, entertained a doubt whether the plaintiff should have judgment for the whole or only for a third of the amount so paid, but finally judgment was given for the whole sum of £  168, 13s., 4d., as there was no plea in abatement.
The report of this case in 5 Ves., shows, that after the decision in the Court of King's Bench, when the cause came on again in chancery, "the only question was as to costs." And Mr. Richards for the plaintiff insisting,  [**12]  that the bill should be dismissed without costs, it was so dismissed.
In addition to the cases which have been noticed, we likewise refer to the following: Chilton vs. Whiffin & Comwell, 

 [*99]  2 Wilson's Rep., 13. Frost vs. Carter, 1 Johns. Cases 74. Lansing vs. Prendergast, 9 Johns. Rep. 127. Bennett vs. Bartlett, 6 Cush. Rep. 225.  Boarman vs. Nash, 9 Barn. & Cres. 145, (17 Eng. Com. L. 344.) Buel vs. Gordon, 6 Johns. Rep. 126. Taylor vs. Mills, 2 Cowper's Rep., 525.
The defendant's counsel has said, the contract in this case must be regarded, not as an agreement to indemnify Berry, but as a contract to pay the debts of the partnership, and that in a reasonable time. In support of which he refers to the decision in Dorsey vs. Dashiell, 1 Md. 198. Conceding this position to be true, still the contract does not justify the defendant in contending, as he does, that a failure to pay, before the application in insolvency, even of those debts which were not payable until after the application, gave authority to Berry to exhibit a claim [**13]  against the assets of the insolvent, in the hands of his trustee, on account of such debts, and, therefore, for them, although paid by the plaintiff after the application, he could not recover against the defendant, after his discharge, except subject to such discharge. This position necessarily assumes, that the contract to pay in a reasonable time, bound the McLeans to pay debts of the firm, before the creditors could demand payment of them. To this we cannot yield our assent. On the contrary we think that payment of a claim, so soon as it falls due, is paying in a reasonable time.
Where such a contract as the present does not, in terms, state when the debts are to be paid, and all or part of them will not be due and payable to the creditors of the partnership, until after the execution of the contract, it does not require the payment of the debts until they respectively fall due. And such as may be due, at the date of the contract, are to be paid in a reasonable time, according to the principle stated in Dorsey vs. Dashiell.
In that case the court say: "The contract before us must be construed as equivalent to a promise to pay. And as the claims in controversy were all due [**14]  prior to the dissolution of the partnership, Dorsey was bound to discharge them within a reasonable time after the date of the covenant. He failed to 

 [*100]  do this. Which failure gave the appellee a right of action against him more than twelve years prior to the issuing of the writ." The question there was in reference to the plea of limitations.
Here, instead of the debts being all due and payable at the time of the dissolution, many of them were not payable till after the insolvent's application.
This contract is not under seal, it contains no penalty, nor does it promise to pay any sum of money to Berry, but provides, that "all debts due by the firm, of whatsoever nature or description, are to be paid by William and George McLean, so that John H. Berry, Jr., is to be entirely acquitted and discharged from said debts." On account of such of those debts as were not payable until after William H. McLean applied for the benefit of the insolvent laws, there could be no breach of the contract, until after such application. And, if so, Berry could not claim dividends for those debts under the insolvent proceedings.
The prayer looks to the evidence alone, and notwithstanding [**15]  the very ingenious argument of the defendant's counsel, we cannot think, that under the proof in the cause, it was proper for the court to instruct the jury, that the plaintiff had no right to recover for any such sums of money as may have been owing from the firm of William and George McLean & Co., before the deed of assignment to R. M. McLean, and before the application of William H. McLean for the benefit of the insolvent laws, except subject to his discharge, notwithstanding the jury might find from the evidence, that such sums of money were not payable by William and George McLean & Co., until after the application of the said William H. McLean for the benefit of the insolvent laws.
Believing the court did wrong in granting the defendant's prayer, the judgment will be reversed.
Judgment reversed and procedendo awarded. 

34 of 47 DOCUMENTS 

ANDREW ARMSTRONG vs. PHINEAS THRUSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 148; 1857 Md. LEXIS 30 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellee, as holder, against the appellant, as endorser, of a promissory note for $ 1257.54, dated October 28th, 1850, drawn by Neale, Armstrong & Co., payable at six months to blank order and endorsed by the defendant and others. Plea, non assumpsit.

1st Exception. The plaintiff proved by McKee, one of the clerks of the firm of Neale, Armstrong & Co., that the note in question, drawn by them, was handed to him by a member of that firm, with directions to take it to defendant for his endorsement; that witness delivered it to defendant at his counting-room, and the latter handed it back to witness endorsed; witness did not see him endorse it, because he did not pay particular attention, but is confident he did endorse it, because it was not endorsed when handed to him and it was endorsed when handed back to witness by him, and to the best of witness' knowledge, there was no person in his counting-room but defendant and witness.

The plaintiff then offered in evidence the protest of the note, which, in reference to demand upon the makers, states that the notary "presented the said promissory note [**2]  at the place of business of Mr. Horwitz, the trustee for the matters thereof, and demanded payment therefor, and was answered by his brother, "it cannot be paid;" and in reference to notice, that he "addressed written notices to the endorsers of the said promissory note, informing them it had not been paid, and that they would be held responsible for the payment thereof."

The defendant then proved by Rowe, who was the defendant's book-keeper from October 1848 to August 1851, that he was familiar with defendant's handwriting, being in the habit of seeing him write, during that period, almost every day; that in his opinion the endorsement on this note, purporting to be that of the defendant, was not genuine, and that the defendant writes a heavier hand. Whereupon the plaintiff, for the purpose of testing the accuracy of his judgment, in cross-examining this witness, produced certain papers with the words, "Andrew Armstrong" written upon them, and offered to show these words to him, and without disclosing or allowing the witness to examine the contents of these papers, to ask him whether these words were the genuine handwriting of the defendant; to which offer and evidence the defendant [**3]  objected, and insisted that the same were inadmissible. But the court, (FRICK, J.,) was of opinion that the testimony was admissible, and permitted it to be given to the jury, and the witness thereupon said that three of these papers, so shown him, bore the genuine signature of defendant, and in regard to the fourth he had doubts about its genuineness. The defendant excepted.

2nd Exception. The defendant then proved by Mr. Savin, that he was well acquainted, and had been for several years, with defendant's handwriting, and in his opinion, and from his knowledge then acquired, the endorsement on this note, purporting to be that of the defendant, was not genuine, and that defendant writes a heavier hand. Whereupon the plaintiff, upon cross-examination, offered to prove by this witness, that there had been a change in defendant's handwriting within eighteen months past, but the defendant objected to the admissibility of such testimony without the production of some of defendant's handwriting within said period. But the court was of opinion the testimony was admissible and permitted it to be given to the jury. The witness then said the defendant's signature was heavier now than it [**4]  formerly was. The defendant excepted.

3rd Exception. The plaintiff thereupon, for the purpose of testing, in the judgment of the jury, the accuracy of the judgment of the defendant's witnesses, as to defendant's signature and the peculiar characteristics thereof, as testified to by them, offered to prove by William Chesnut, that the words, "Andrew Armstrong," written upon the four papers offered in evidence by the plaintiff, and mentioned in the first exception, were endorsements in the genuine handwriting of the defendant, to wit: (These papers are four promissory notes purporting to be endorsed by the defendant;) to which offer the defendant objected, but the court overruled the objection and permitted said endorsements to be proved by the witness, who testified that they were in the handwriting of defendant, and suffered the same to be submitted to the jury for inspection and examination. To this ruling the defendant excepted.

4th Exception. The defendant further proved by several witnesses, well acquainted with defendant's handwriting, that in their opinion the endorsement upon this note was not genuine; several of these witnesses, on cross-examination, stated, as the [**5]  grounds for their opinions, that defendant's genuine signature was heavier and not so round a handwriting, and that particular letters, to wit, the "A," "t" and "g" in Armstrong were not like those in the genuine signature. The plaintiff then proved by several witnesses, acquainted with defendant's handwriting, that, in their opinion, said endorsement was genuine; and further proved by Mr. Horwitz, that Neale, Armstrong & Co., the drawers of the note, failed about the 7th of January 1851, and executed to witness an assignment of all their property for the equal benefit of all their creditors, and shortly afterwards applied for the benefit of the insolvent laws, and witness was appointed their permanent trustee. (This assignment and their insolvent papers were offered in evidence, but do not appear in the record.) Whereupon the defendant prayed the court's instructions to the jury:

1st. That no sufficient evidence of demand upon the makers of the note in suit to charge the defendant, as endorser, has been offered in evidence in this case, and that the plaintiff, therefore, is not entitled to recover.

2nd. That no sufficient evidence of demand upon the makers of the note in [**6]  suit, and of notice to the endorser, has been offered in this cause, so as to charge the defendant as such endorser, and that the plaintiff, therefore, is not entitled to recover.

The court refused to grant these instructions, or either of them, and to this refusal the defendant excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Where the defendant's signature to a note in suit is disputed, and a witness had stated that the signature was not genuine, it is competent for the plaintiff, on cross-examination, to prove by this witness, that there had been a change in the defendant's handwriting since the signature in question was written, and that his signature is heavier now than it formerly was.

But it is not competent for a party to introduce, at the trial, other papers, irrelevant to the issues, for the purpose of enabling a witness or the jury to institute a comparison of handwriting.

Where a firm, the makers of a note, failed and made an assignment of all their property for the equal benefit of creditors, and took the benefit of the insolvent laws, a demand at the office of the assignee and trustee in insolvency is not sufficient, but must be made on the makers or at their place of business; their insolvency does not excuse the holder of the note from a compliance with the statute in order to charge the endorser.

A notice to an endorser informing him "that the note had not been paid, and that he would be held responsible for the payment thereof," without stating that demand had been made on the makers, is insufficient.

According to the well established practice in Maryland, and the uniform course of the appellate court, bills of exception must be considered wholly distinct from each other unless they contain sufficient words of connexion.  

COUNSEL:
William B. Perine and John Nelson for the appellant, argued:

1st. That the court erred in permitting the evidence to go to the jury as stated in the first and third exceptions, 1st. Because it introduced into the cause papers not relevant and not properly in the cause, thereby raising new and collateral issues as to their genuineness. 2nd. Because it operated as a surprise to the defendant, who did not know that such documents were to be produced and was not prepared to show that they were not genuine. 3rd. Because the papers may have been selected from many others for the express purposes of this cause, on account of their bearing an accidental similitude to the alleged handwriting of the defendant, thereby misleading both the witness and the jury. 4th. Because the offer of the evidence was, in point of fact,  [**7]  an attempt to enable the witness and the jury to come to an opinion of the genuineness of handwriting by a comparison of the papers with the note sued upon, which is clearly inadmissible. 5th. Because the offer to prove the genuineness of the signature of the papers by the witness, Chesnut, was before any proof had been offered by the plaintiff of any knowledge by the witness of the defendant's handwriting, and before the defendant had any opportunity, upon cross-examination, of exploring the sources of his information. 6th. Because the witness, Rowe, was entitled to see the contents of the papers, or some part thereof, in order to enable him to express a fair and impartial opinion. For these positions see 1 Greenlf. on Ev., secs. 580, 581. 2 Philip's Ev., (Cowen's & Hill's 3rd Ed. by Van Cott,) 254, 255, 256, 257. 1 Nev. & Perry, 1, Doe vs. Newton. 7 Car. & Payne, 596, Waddington vs. Cousins. Ibid., 548, Bromage vs. Rice. 11 Adol. & Ellis, 322, Griffits vs. Ivery. 8 Gill 86, Smith vs. Walton. 9 Cowen, 112, Jackson vs. Phelps. The same rule in regard to the comparison of handwriting which prevails in England is recognised in this State. There can be no doubt such a comparison was [**8]  attempted in this case; the papers were submitted to the jury purely for the purpose of comparing them with that in suit in regard to the handwriting. The witness, Chesnut, was not asked whether these papers contained the peculiarities in the handwriting which had been spoken of, but this was submitted to the jury for them to decide, and surely this is a comparison of handwriting. This case does not come within the decision in Young vs. Horner, 1 Car. & Kir., 51; that case has gone a great way, but is clearly distinguishable from this. The decision there is, that you may cross-examine a witness to test the accuracy of his judgment in reference to certain peculiarities which he, (the witness,) said existed in the genuine signature; here no such question was asked the witness, but this was left to the jury, they were to decide it. The case of Brookes vs. Tichborne, 2 Eng. Law & Eq. Rep., 374, is similar to that of Young vs. Horner.

2nd. That the court erred in permitting the evidence mentioned in the second exception to go to the jury, because the witness referred to papers bearing the defendant's handwriting without producing such papers.

3rd. That the court erred in refusing [**9]  the defendant's prayers in the fourth exception, 1st. Because there was no evidence of any demand of payment of the note, so as to charge the defendant as endorser; the demand upon their assignee or trustee being, in law, insufficient; and 2nd. Because there was no sufficient notice to the endorser. Story on Bills, sec. 318 and note, 326, 346, 230, 279, 306. Story on Prom. Notes, secs. 237, 241 and note 4. Chitty on Bills, (11th Am. Ed.,) 330, 355. Byles on Bills, 158. Bayley on Bills, 240. 3 Md. 256, Nailor vs. Bowie. 1 Do., 66, Graham vs. Sangston. Ibid., 511, Hunter vs. Van Bomhorst. 3 Do., 210, Boehme vs. Carr. 4 Do., 294, Farmers Bank vs. Bowie. 6 Do., 10, Manning & Co., vs. Hays. It is objected that these prayers are based solely upon the evidence in the fourth exception, but we do not so read this exception. It says, "whereupon;" that is, upon the whole evidence in the cause, and this exception is connected with the preceding ones by the statement that the defendant "further proved," &c. But it has been decided, that if no facts appear in the record, and the prayer contains a proposition of law, this court will retain the exception, and act upon it. 2 H. & J. 376, Barnes [**10]  vs. Blackiston. If the court should reverse upon this fourth exception, no procedendo will be awarded, because it is clear the plaintiff cannot recover, there being no sufficient demand on the makers, and notice to charge the endorser. 8 Md. 287, Cline & Francis vs. Miller.

Levin Gale for the appellee, stated that it must affirmatively appear that the plaintiff cannot recover, before this court will refuse a procedendo upon reversing the judgment; the appellee is not bound by the evidence of demand and notice contained in the protest, but may prove the sufficiency of the notice and demand outside of the protest, and this the plaintiff thinks he can prove, and should be allowed to do so under a procedendo, in case the judgment should be reversed. He then argued:

1st. That the evidence excepted to in the first three exceptions was properly received, because the witness examined in chief by the defendant, having testified that the signature of the endorsement on the note sued on was not genuine, on account of its want of certain peculiarities, it was competent, on cross-examination, to submit other signatures to the witness, to test his accuracy, by showing that genuine [**11]  signatures wanted the peculiarities specified by the witness, and to exhibit such writings to the jury for that purpose. 1 Car. & Kir., 51, Young vs. Horner. 2 Eng. Law & Eq. Rep., 374, Brookes vs. Tichborne. 1 Gallison, 175, Smith vs. Fenner. We do not attempt to prove the handwriting by a comparison of hands, but disclaim such a purpose. The handwriting was proved by at least one witness, whose testimony is unimpeached, and we merely attempted, on cross-examination, to test the accuracy of the judgments of the witnesses for the defendant, and this it was competent for us to do. But these papers were admissible upon another principle, viz: that being once in evidence without objection, the jury must consider them.

2nd. That it was not necessary to state, in so many words, in the offer of the testimony of Chesnut, that he was acquainted with the handwriting of the endorser, the offer to prove that the signature was genuine, sufficiently showing that fact; the testimony being objected to for other reasons. The objection, if to the knowledge of the witness, should have been made more clearly, when it would have been removed. But the testimony itself shows that he did have knowledge,  [**12]  and the other side should have searched the witness, if they doubted his knowledge.

3rd. That the defendant's first prayer was properly rejected, because it took away from the jury the questions whether Horwitz was the agent of the makers, and also whether the place where the demand was made, was not, in fact, the then place of business for the transaction of the co-partnership affairs, and so properly made. Byles on Bills, 158. The assignment of all the property constituted the trustee their agent, and gave the endorser security, so that demand was unnecessary. 7 Wend., 165, Mechanics Bank vs. Griswold. 9 G. & J. 31, Duvall vs. Farmers Bank.

4th. That the second prayer was properly rejected, because it included the proposition of the first prayer, and if that were properly rejected, the court would have stultified itself in granting the second prayer.

5th. That the fourth exception does not set out the whole evidence, and, therefore, the court cannot say whether the prayers were properly rejected or not, and cannot, therefore, reverse the rulings on these prayers. The other bills of exception are not incorporated and made part of this, by express terms, as they [**13]  ought to have been. 4 Md. 273, Burtles vs. The State.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*155]  BARTOL, J., delivered the opinion of this court.
This is an action instituted by the appellee, as holder of a promissory note, against the appellant, as endorser. The defences set up were: first, that the handwriting of the defendant's endorsement was not genuine; secondly, that there was no demand of payment upon the drawers; and lastly, that the notice to the endorser, Andrew Armstrong, was insufficient.

 [*156]  In the course of the trial below, several questions of evidence arose, the decision of which forms the subject of the 1st, 2nd and 3rd bills of exceptions. We think that the objection of the appellant to the evidence stated in the 2nd bill of exceptions is not well taken. That evidence was competent and proper to go to the jury. It was not only unnecessary, but would have been clearly inadmissible for the appellee to have introduced into the cause other handwritings of the defendant, for the purpose of showing that his handwriting had undergone such a change as was spoken of by the witness. And, for the [**14]  same reason, we are of opinion that the Superior Court erred in admitting the evidence stated in the 1st and 3rd bills of exceptions. It is not competent for a party to introduce, at the trial, other papers irrelevant to the issues, for the purpose of enabling a witness, or the jury, to institute a comparison of handwriting. This rule of law rests upon the soundest reasons. It is established by the English authorities, and has been approved and adopted in Maryland. See 8 Gill 86. Doe vs. Newton, 1 Nev. & Per. 1, and same case in 5 Ad. & El. 514. Bromage vs. Rice, 32 Eng. C. L. Rep. 625. Griffits vs. Ivory, 39 Eng. C. L. Rep. 104. 1 Greenleaf's Evidence, secs. 580, 581. 2 Phil. Ev., (Cowen & Hill's 3rd Ed., 1849,) 254, 255, 256, 257.
The 4th bill of exceptions presents the questions of the sufficiency of the demand and notice proved in this cause. The law is well settled, by repeated adjudications in this State, that to entitle the plaintiff in such action to recover, he must aver and prove a demand upon the maker for payment of the note at its maturity, and his failure to pay, and  [**15]   also that notice of such demand and non-payment was given to the endorser. The responsibility of an endorser is contingent, it arises under the statute, and to fix it, the requirements of the statute must be complied with by the holder. Graham vs. Sangston, 1 Md. 59, 66. 3 Md. 202 and 251. 6 Md. 5.
In this case, the only proof of the demand and notice is found in the notary's certificate, which states "that he presented the said promissory note at the place of business of Mr. Horwitz, the trustee for the matters thereof, and demanded 

 [*157]  payment therefor, and was answered by his brother, 'It cannot be paid.'" The note was drawn by the firm of Neale, Armstrong & Co., composed of John Thomas Neale, George B. Armstrong, and Edmund Landis. The firm failed in business on or about the 7th day of January 1851, and executed to Mr. Horwitz an assignment of all their property, for the equal benefit of their creditors, and shortly afterwards applied for the benefit of the insolvent laws, and said Horwitz was appointed their permanent trustee. A demand at the office of Mr. Horwitz is not sufficient, it ought to have been made [**16]  on the makers, or at their place of business; their insolvency does not excuse the holder from a compliance with the statute. Story on Bills, sec. 318, note 1. Story on Prom. Notes, sec. 241.  9 Gill 360.
The exception to this rule, found in cases of agency, by no means applies to this case; the relation of Mr. Horwitz to the makers of this note, was not that of agent, in the sense spoken of, but simply that of assignee or trustee, which imposed on him no duty to pay the note, or authorized him to do so; and no case has been found where a demand of payment on a person standing in that relation to the maker of a note, has been held sufficient. The notice given to the endorsers in this case, which is also proved by the notary's certificate, is clearly insufficient. It simply states that the note "had not been paid, and that they would be held responsible for the payment thereof." The law requires notice of the demand on the makers, as well as of the non-payment of the note.  Graham vs. Sangston, 1 Md. 59.
Entertaining these views, we consider that the court below erred in refusing the prayers of the appellant, contained in the [**17]  fourth bill of exceptions. Whether we confine our attention to the evidence contained in that exception alone, or consider all the other evidence presented in the other bills of exception and appearing upon the record, the result in this case will be the same. We deem it proper, however, to say, that according to the well established practice in Maryland, and the uniform course of the appellate court, bills of exceptions must be considered wholly distinct from each other, unless they contain 

 [*158]  sufficient words of connection.  Gist's Adm'r vs. Cockey & Fendall, 7 H. & J. 134.
Judgment reversed. 

35 of 47 DOCUMENTS 

BURLINGTON CARLYSLE, Guardian of DAVID G. CARLYSLE, vs. DAVID G. CARLYSLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 440; 1857 Md. LEXIS 8 

JUNE, 1857, Decided 

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

The appellant filed a petition in the court below, alleging that in September 1853, he had in his hands $ 4650 of his ward's money, which he desired to invest in a mortgage upon real estate; that Jacob F. Kridler, then regarded as a respectable and thriving business man, applied to him for the loan of this sum, upon the security of a house and lot worth from $ 8.000 to $ 10.000, upon which was a prior mortgage of $ 2500, which Kridler agreed to have released; that deeming this security ample, he employed an attorney to investigate the title and obtain from the orphans court their approbation of the intended investment; that his attorney made the investigation, and informed him the title was clear, except the mortgage of $ 2500, and that the orphans court approved of the investment; that reposing confidence in this statement of his attorney, and hearing himself from the court that they sanctioned the loan, and having no reason to suspect the integrity of Kridler, whose then standing in the community precluded any such suspicion, he advanced $ 1500 on the 4th of October 1853, taking, on the same day, a mortgage on the property for [**2]  $ 4650, the balance being retained until Kridler obtained a release of the mortgage for $ 2500, which he did soon after, whereupon said balance was paid to him; that the mortgage was recorded the day it was executed, and he rested entirely satisfied with the security of the investment, until some time in the year 1854, when he saw the property advertised for sale, under a decree in equity, when, upon inquiry, it appeared that Kridler had, after the agreement for this loan, and after the aforesaid examination of the title, fraudulently procured an advance of $ 4000 from one Ireland, to whom he executed a mortgage of this property, dated the 19th of September 1853, upon which the decree aforesaid was passed; that, upon the sale, there was found but $ 2776.40, applicable to the mortgage debt of $ 4650 and interest. The petition further alleges, that in making this investment the petitioner did so fairly and in the execution of the duties of his office, and for the benefit of his ward, with the assent and sanction of the orphans court, and with the professional advice and assistance of his attorney, and under such circumstances he is advised, there is no principle of law or equity by which [**3]  he should be held responsible for the loss which has occurred, notwithstanding his reasonable care and diligence in the premises, and prays that he may be allowed in his guardian's account, a credit for the difference between the sum so loaned and that received by him as aforesaid.

The appellee answered this petition, alleging his infancy, and putting the petitioner to the proof of the matters stated in his petition.

Thomas Whelan, Jr., deposed, that he was employed by Mr. Carlysle, to investigate the title to the property in question, which he carefully did, and found it at the time of the examination all right, with the exception of a mortgage for $ 2500, and reported the result to Mr. Carlysle, who, with deponent, applied to the orphans court for permission to make the investment, which permission the court verbally granted, and the money was advanced by Mr. Carlysle, as stated in his petition; that Kridler, at this time, was in good standing and engaged largely in business; he cannot say on what day he made the examination, or how long a time intervened between it and the investment; thinks he made two examinations; that the application to the orphans court was verbal,  [**4]  and their order of approval was also verbal.

Joshua H. Hynes, who was at the time chief judge of the orphans court, deposed, that Mr. Carlysle with his counsel Mr. Whelan, appeared before the court, when the latter stated that Mr. Carlysle desired to invest the money, under the direction of the court, upon the security of the property in question; that he had examined the title, and it was good; whereupon the court told him they would approve of the investment, and to go on and make it and report to the court what he had done; deponent does not know whether the court at that time had any practice in reference to the approval of investments, but afterwards they adopted a rule, to reduce to writing their approval of such investments; he does not know whether a report of this investment was made as required by the court; deponent's idea was, that Mr. Carlysle would make the investment, and report in writing to the court, when an order would be passed approving of it; the court did not, as far as deponent can remember, ever call the register's attention to it, as they considered the application preliminary; deponent said no more to him than, to go on and make the investment and report [**5]  it; and Mr. Carlysle said he would make a report; if deponent had thought the action of the court was final, he would have called the register's attention to it, and had a minute of it made upon the proceedings of the court.

The defendant excepted to the oral testimony above taken, as inadmissible, because the records of the orphans court alone, are evidence of all proceedings in regard to the petitioner's guardianship.

The depositions of several conveyancers were also taken, in regard to the practice of examining titles in such cases, some stating the practice to be, to make the examination up to the day the loan is made, and when an interval elapses between the first examination and the loan, to re-examine up to the date of closing the transaction; other, that it is not the practice to re-examine in cases where the parties are respectable, and of ordinarily good character.

The court passed an order directing the guardian to be charged with the loss, from which he appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

If a guardian invests money belonging to his ward, without first obtaining the approval and sanction of the orphans court, and loss results from the investment, he will be held answerable therefor.

An order of the orphans court sanctioning such an investment, must not be merely a verbal order, but must be in writing, and it cannot be proved by parol; the orphans courts are so far courts of record, as that their orders or proceedings must not rest in parol, but must be reduced to writing. 

COUNSEL:
Grafton L. Dulany for the appellant.

Under the circumstances of this case, it would be contrary to every principle of law and equity, to charge the guardian with this [**6]  loss. There is no fact in the case which casts the slightest suspicion upon his motives; he was not benefitted in the slightest degree by the transaction, and in making the investment he was but doing his duty, 1 G. & J., 1, Pawson vs. Donnell. The negligence or fault, if there was any, of the attorney, whom it was his duty to employ, should not be visited upon the guardian. But there was no negligence whatever; both the guardian and attorney acted in good faith and with due diligence, and when so acting, a guardian cannot be held responsible for loss. 2 Story's Eq., secs. 1268, 1269. 8 G. & J., 218, Jenkins vs. Walter. The law throws upon the guardian the duty to exercise due care and diligence only. It enters into no comparisons of degrees of guilt or innocence, otherwise no one could be found who would be willing to take upon himself such a trust. It is supposed that a previous order of the orphans court is essential to protect the guardian in such a case, and reference is made to the acts of 1831, ch. 315, sec. 5, and 1843, ch. 304, sec. 4, to sustain this position. But it is submitted, that the first of these acts does not deprive the guardian of any privilege which he had by [**7]  the common law, in case the orphans court should not act under this law. It authorises the court to direct the investment to be made, but does not say the guardian may not do it without such direction. The latter act simply forbids a sale of the ward's property without an order of the court, but has no reference to an investment of money, belonging to the ward. But suppose such an order was necessary, we say it was given in this case. The evidence shows that the court directed this investment to be made; that they approved and sanctioned it. But it is said, we cannot prove this by parol. This objection is not tenable, for the orphans courts are not courts of record. 2 H. & G., 120, Brodess vs. Thompson. When it appears that any of the proceedings of these courts have not been reduced to writing, they may be established by parol proof. This must be so, especially when it is shown, as in this case, that the court was not in the habit of reducing such proceedings to writing. But at all events there can be no doubt, that the order would have been passed if applied for in due form, and we therefore invoke, for our protection, the well recognised principle, that the court will regard that [**8]  as done, which upon application it would have ordered to be done. 5 G. & J., 1, Lee & Wife, vs. Stone.

John T. Morris for the appellee, argued:

1st. That the parol evidence objected to was inadmissible, to prove the authority of the orphans court to make the loan in question, and that such authority can only be proved by the production of the official order, or copy from the records of the court. 1st. Parol evidence is inadmissible, to prove the orders, decrees or proceedings of courts of record, or to vary, explain or contradict the record. 1 Greenlf. on Ev., sec. 513. 3 Hammond, 554, Ludlow vs. Johnston. 5 Do., 447, Newcomb vs. Smith. 5 Pick., 490, Hathaway vs. Clark. 2nd. The orphans courts in Maryland, are courts of record, and their orders and proceedings must be proved in the same manner as proceedings of other courts of record. Act of 1798, ch. 101, sub-ch. 15, secs. 9, 12. 3 Bl. Com., 1 to 24. 2 Blackf., 344, Allen vs. Clark. 3 New Hamp., 309, Judge of Probate vs. Briggs. 3 Ohio Rep., 553, Ludlow vs. Johnston. 14 Mass., 222, Chase vs. Hathaway.

2nd. If this evidence is admissible, it does not prove such authority to consummate the loan, as would discharge the [**9]  guardian from responsibility for loss. 1st. The order was merely preliminary and not final, as the guardian was required to report the matters again to the court for approval, by the terms of the alleged order, which he neglected to do. 2nd. The order was conditional, that the investment would be approved if the title was good. The title was incumbered and defective, and the alleged order was thereby rescinded.

3rd. That if the formal order had been passed by the court, on the application of the guardian, authorising him to make the loan in question, that would not justify him in omitting fully to examine the title of the property on which the loan was to be made, and if loss occurred because of this omission, he is responsible notwithstanding the order.

4th. That if the guardian had made the alleged loan, in the name and for the use of his ward, and in good faith had exercised usual and ordinary diligence and care in making the investment, but without an order of the orphans court, in case of any loss accruing on account of that loan, the guardian would be responsible, and the rights of the infant would not be affected by the transaction. That such an order is essential [**10]  to the guardian's protection, is apparent from the provisions of the various acts of Assembly upon the subject, and especially by those of 1831, ch. 315, sec. 5, and 1843, ch. 304, sec. 1, See also 4 Md. Rep., 353, Mayor & C. C. of Balto., vs. Norman. 2 Md. Ch. Dec., 418, Murray vs. Feinour.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*445]  ECCLESTON, J., delivered the opinion of this court.
The present case is designed to settle the question, whether the loss resulting from the loan to Kridler, by B. Carlisle, the guardian of D. Carlisle, shall fall upon the guardian or on his ward? The decision below was in favor of the ward, throwing the loss on the guardian.
It will be proper, in the first place, to notice certain acts of Assembly having an important bearing upon the matter in controversy.
The act of 1816, ch. 154, which relates to sales of the real estate of minors, by the 5th section, directs the proceeds of such sales to be paid over by the trustees to the guardians, 

 [*446]  and by them to be "vested in such public stock, or other permanent funds, as will, at least, net six per centum per annum, at the time of the [**11]  purchase, and as the orphans court of the county, by whom such guardian or guardians shall have been appointed, shall direct."
And the 7th section enacts: "That all moneys vested by and in virtue of this law, shall be vested in the name of such infant or infants, and shall be transferable only by virtue of an order of the orphans court aforesaid, and all transfers, without such order, are hereby declared void to all intents and purposes."
By the 2nd section of the act of 1816, ch. 203, it is provided: "That the orphans courts shall have authority to empower any guardian to sell any leasehold estate belonging to his ward, if the court shall think such sale advantageous to such minor, and shall order the proceeds of such sale, or any surplus money belonging to said minor or orphan, to be invested in bank stock, or any other good security, which investment shall be made in the name of the minor or orphan, and that no sale, transfer or disposal of the stock of such minor or orphan, shall be made without the concurrence of the orphans court."
The provisions of the act of 1816, ch. 154, respecting the sales of real estate of minors, are extended to personal estate of such minors,  [**12]  by the act of 1819, ch. 144, section 2.
By the 5th section of the act of 1831, ch. 315, the orphans courts are authorized, in their discretion, and whenever to them it shall seem proper, to order "any guardian whom they may have appointed, or whose bond they may have approved of, if it be a natural or testamentary guardian, to bring into court, or place in bank, or invest in bank or other incorporated stock, or in other good security, any money or funds received by such guardian, and the court shall direct the manner and form in which such money or funds shall be placed in bank, or invested as aforesaid, and the same shall, at all times, be subject to the order and control of such court."
The act of 1843, ch. 304, sec. 1, provides, that it shall not be lawful for any guardian "to sell any property" of his ward, 

 [*447]  without an order of the orphans court "first had and obtained, authorising such sale or removal, and any sale made without an order of court previously had," is made void.
These laws manifest a clear intention, on the part of the Legislature, to protect the property of a ward against the mismanagement of his guardian, by placing not only the sale of property,  [**13]  but also the disposition or investment of money, under the control and direction of the orphans court. And these provisions afford the guardian ample and convenient means of securing himself from loss. If, therefore, he thinks proper to disregard them, and chooses to assume the responsibility of investing the money without the sanction of the court, he should be held answerable for any loss which may result from such an imprudent course.
The principle thus announced renders it necessary to inquire, whether the appellant made the loan complained of by the appellee, under the authority or order of the orphans court?
It is alleged, by the appellant, he had authority from the court to make the loan; admitting, however, that the authority was not in writing but merely verbal. And, in fact, the proof offered to sustain the allegation is nothing more than parol evidence, which proof shows there was no written order passed on the subject, that no direction was given to the register to make any entry of it upon the minutes or proceedings of the court, and that no such entry ever was made.
The appellee insists that this parol evidence is inadmissible for the purpose for which it has been [**14]  introduced; and, consequently, there is no proof showing that the court ever authorized or sanctioned the loan. The appellant denies this, insisting that the orphans court is not a court of record, and when it appears any of its proceedings have not been reduced to writing, they may be established by parol proof. This, he says, must be so, especially when (as in this case) it is shown the court were not in the habit of reducing such things to writing.
The adoption of the appellant's doctrine, in such a case as this, would establish a most dangerous principle. Under such 

 [*448]  a rule, unsafe, indeed, would be the rights of persons, in regard to property, when those rights have been acted upon by these very important courts. We call them important, because, the swift messenger of death is annually bringing within their jurisdiction large amounts of personal property.
We have seen no authority, and can perceive no good reason, for admitting, that the orders of these courts may be merely verbal, and may be proved without any written evidence. Such a doctrine we consider at variance with the law creating and regulating the courts, contrary to the authorities in reference to courts [**15]  of similar character, and contrary to sound legal principles.
The law providing for the organization of our orphans courts, certainly makes them so far courts of record as to require, that their proceedings shall not rest in parol, but shall be reduced to writing; and for the purpose of having proper entries made of them, and certified copies given, under seal, when demanded, a clerk has been provided.
The act of 1798, ch. 101, sub-ch. 15, section 9, requires the register of wills diligently to attend each meeting of the orphans court, and under their direction, to make full and fair entries of their proceedings; to make a fair record in a strong bound book or books, of all wills proved before him, or the said court, or authenticated according to the act, and of all other matters by law directed to be recorded in the said court, or in his office; to make out and issue every summons, process or order of the court; that he shall, in every respect, act under their control and direction, as the clerk of a court of law is under the direction of a court of law; that he shall give out and certify, under the seal of the court, any copy of any part of the proceedings in  [**16]   the court, or in his office, which any person may demand.
Now, with such provisions in regard to the proceedings of the orphans court, what propriety or necessity can there be for holding that their orders or proceedings may be merely verbal, and evidenced, or established in any subsequent suit or controversy by parol proof only? We cannot recognize a doctrine which assumes the propriety or necessity for so doing.

 [*449]  The case of Chase vs. Hathaway, 14 Mass. 222, involved an inquiry, whether a decree deciding Chase to be incapable of taking care of himself, was valid or not? The ground on which the court held the decree to be invalid was, that Chase had no notice of the proceedings either before the select men who made the inquisition, or in the probate court, in which the decree was passed. We have referred to this case for the purpose of quoting, as applicable to the subject before us, the following language of Chief Justice Parker: "A court of probate, although not technically a court of record, ought to have a perfect record of all its orders and decrees; and it was for this purpose principally, that the constitution established the office of register. [**17]  Orders of notice, among other things, should be recorded, or if not, should be filed, with the return upon them."
In Weatherhead's Lessee vs. Baskerville, et al., 11 How. S. C. Rep. 360, the Supreme court say: "By the law of Tennessee, such a partition is a judicial act and becomes a record. It can only be proved as such records may be.... The rule in respect to judicial records is, that, before inferior evidence can be received of their contents, their existence and loss must be clearly accounted for. It must be shown that there was such a record, that it has been lost or destroyed, or is otherwise incapable of being produced; or that its mutilation from time or accident, has made it illegible.... The burning of an office and of its records is no proof that a particular record had ever existed. It only lays the foundation for the inferior evidence. If that cannot be got, the result must be, and is, that there has been an allegation of the existence of a record, without proof."
Whether a certain order might be proved by parol, was made a question in the case of the Heirs of Ludlow vs. C. & J. Johnston, 3 Ohio 553. There the Supreme court of the State [**18]  say: "The court of Common Pleas, whether acting as a court possessing common law jurisdiction, or as a court of probate, is a court of record. The proceedings, orders, judgments, decrees of such courts, do not rest in parol. It is by their records they speak--and there is but one mode, 

 [*450]  as a general rule, known to the law, by which their acts can be proved, and this is by the record itself. True, there are cases, where, after the loss or destruction of a record, you may prove its contents. In such case all has been done by the court which could be done--a record, which is the legal evidence to prove its acts, has been made. The rights of all parties concerned are fixed, and those rights ought not to be affected by time or accident. But before the contents of a record can be proved, it must be shown that it once existed and has been lost by time or accident. This shows that the evidence is not introduced to prove the proceedings of a court as resting in parol, but as they once existed of record. But to introduce parol testimony to prove the proceedings of a court of record, and then substitute this testimony for the record itself, would be a novel proceeding. It would be [**19]  equally absurd as to sustain an action of debt upon bond, upon proof that the defendant promised to make such an instrument as is set forth in the declaration, although the fact should be admitted, that the instrument was never executed."
The appellant in the present case relies upon parol evidence, only, for the purpose of proving that he was authorized by the court to make the loan in controversy, which authority was not in writing, nor was any entry of it directed to be made by the register, and in fact it never was entered or recorded by him, among the proceedings of the court. Under these circumstances we must treat the case as if no such authority or order ever had existence; and, of course, as if the guardian made the loan without the sanction of the court. The result of which is, the appellant should be held responsible for the loss. And the court below having so decided, the order appealed from will be affirmed without costs in this court.
Order affirmed. 

36 of 47 DOCUMENTS 

LEWIS LOHRFINK vs. HENRY STILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 530; 1857 Md. LEXIS 17 

JUNE, 1857, Decided 

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

This was an action for a malicious prosecution, brought by the appellee against the appellant. The declaration was in the usual form, except that it omitted to aver that the alleged malicious prosecution was "without probable cause." Plea, non cul.

1st Exception. After the testimony had been closed, and several prayers offered on the part of the defendant and acted on by the court, but which need not be stated, the plaintiff asked leave to amend his declaration, by inserting in a specified place the words, "and without any reasonable or probable cause whatsoever," and moved that the declaration "may be deemed and taken to read as if said amendment were made." The court, (FRICK, J.,) passed an order that the plaintiff "have leave to amend at bar as prayed." The defendant objected to making the amendment without first withdrawing a juror, but the court overruled the objection. He then objected to making the amendment in the present nar in the manner proposed, and asked for a new nar. This objection the court also overruled, and permitted the amendment to be made as prayed, and to these several rulings the defendant excepted.  [**2]  

2nd Exception. After the application to amend had been reduced to writing and presented to the court, the defendant stated his objections to the mode of amendment, the court then granted leave to amend as prayed, and the defendant excepted, and tendered his exception to be signed, when the court, before signing it, asked the defendant's attorneys if they were taken by surprise by the application to amend, and whether the amendment, as made, altered, in any respect, the case as presented to the jury? which question they declined to answer. The court then signed the exception, and ordered the case to proceed before the same jury without re-swearing them, stating that the ends of justice and the justice of the case, in its opinion, did not require a continuance. To this ruling the defendant excepted.

3rd. Exception. The defendant then tendered a demurrer to the declaration, upon the ground that it was defective in not averring that the alleged prosecution was without probable cause, and that no new nar having been filed under the leave to amend, and the old one not having been, in point of fact, amended, there is no allegation that the alleged prosecution was without probable [**3]  cause. The plaintiff objected to the reception of this demurrer, which objection the court sustained, and to this ruling the defendant excepted.

The jury then rendered a verdict in favor of the plaintiff for $ 500 damages, and the defendant then moved in arrest of judgment, because:--1st, the declaration, as originally filed, was, and is, defective in omitting the material allegation, that the alleged prosecution was without probable cause; 2nd, the said declaration was not amended, although leave to amend was asked and granted; 3rd, such amendment could not be considered as made unless actually made; 4th, it could not be made by interlineation; 5th, it could only be made by withdrawing a juror and filing a new nar; 6th, by amendment of the nar, the plea filed to the original nar was necessarily out of the case; 7th, the verdict is a nullity, because there was no issue; 8th, and for other reasons. The court overruled this motion, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action for a malicious prosecution, the omission to aver that the alleged prosecution was without probable cause, is a fatal defect in the declaration.

In such an action the plaintiff asked leave to amend his nar, by inserting the words, "without probable cause," and "that the declaration might be taken to read as if said amendment were made," and the court ordered that he "have leave to amend at bar as prayed." HELD:

That this permission to amend does not, per se, amount to an amendment; the amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.  

COUNSEL:
Benjamin C. Barroll for the appellant, argued:

1st. That prior to the act of 1852, ch. 177, the laws of this State imperatively required a juror to be withdrawn before an [**4]  amendment of the pleadings could be made. Acts of 1785, ch. 80, sec. 4, and 1809, ch. 153. The act of 1852 enlarged the power, but not the mode, of amendment. The first section simply extends the power of amendment to the writ; the ninth section providing that no continuance shall be granted upon amendments, applies only to actions of ejectment which had been provided for in the preceding sections, or, if it applies to all cases of amendments, it simply provides that such amendments shall not operate a continuance of the case; that is, its postponement to the next term, unless the ends of justice, in the opinion of the court, require such a continuance, and, therefore, in no wise repeals the provisions of the previous laws requiring the withdrawal of a juror upon every amendment of the pleadings.

2nd. That when the court allowed the amendment it was the duty of the plaintiff to file his amended nar. He had no right to alter, by erasure, interlineation or otherwise, the records of the court. Ev. Prac., 246. The leave to amend could not operate as an amendment, and the court had no power to say that the nar should read as it did not read. There was, therefore, no amendment, in point [**5]  of fact, made, and the nar stood, and still stands in the record, without the material averment of want of probable cause.

3rd. That when a plaintiff amends, it is the right of the defendant to modify his defence to suit the new case as made by the amendment. Before an amendment is made the original pleading is withdrawn, leave being granted, and, consequently, when a nar is withdrawn for amendment the plea to it is out of the case, (5 Hill, 556, Barstow vs. Randall,) and as the court compelled the defendant to proceed the case was not at issue, and the verdict, therefore, was a nullity. 3 H. & J., 561, Kerr vs. The State.

4th. That it was the right of the defendant to take issue upon matter of law by his demurrer, which ought to have been received and sustained because of the absence of the material averment of want of probable cause. 3 G. & J., 377, Turner vs. Walker. 6 Md. Rep., 400, Cochrane vs. The State.

5th. The motion in arrest of judgment brings up the question of the regularity of the pleadings. 4 Md. Rep., 434, Terry vs. Bright. If the case was at issue under the amended nar, the jury found their verdict on a different issue from that which they had been sworn [**6]  to try, and should have been sworn over again. The defendant did not ask or desire a continuance, but only desired to plead anew to the amended nar, and that the forms of the law should be complied with.

Oliver Miller for the appellee.

The several exceptions in this case present but two questions: 1st, did the action of the court below in regard to the amendment of the nar effect an amendment thereof? and 2nd, could such an amendment be made without the withdrawal of a juror? If the affirmative of these questions can be sustained, the judgment must unquestionably be affirmed.

In regard to the first question, the record shows that the motion to amend was reduced to writing, that it sets out the words sought to be inserted, and the place where they are to be inserted in the nar, and then prays that "said nar may be deemed and taken to read as if said amendment were made," and that the court, by its written order, granted the leave to amend at bar, "and permitted the amendment to be made as prayed;" that is, the court ordered the nar to read as if the proposed words were inserted in the specified place. It cannot be material how the amendment is made, provided it appears [**7]  upon the record of the case to have been done. Now this motion to amend, and the order of the court thereon, were both in writing, and formed as much a part of the record of the case in the court below as did the original nar or the plea thereto. It is insisted, therefore, that this order of the court operated as an amendment of the declaration to the extent of such order; in other words, that it perfected the declaration. Though there are no decisions of our own courts upon this question, yet the very point has been decided by the highest tribunals of other States. 3 Ala., 741, Palmer vs. Lesne. 12 Iredell, 275, Holland vs. Crow. 2 Hawk., 214, Ufford vs. Lucas. The amendment being thus made, no new pleadings were required to put the case at issue. The plea of non cul not having been withdrawn, such plea applied to the amended declaration, and the case was at issue.

The second question depends upon the proper construction of the act of 1852, ch. 177. It is conceded that under the previous laws such an amendment could only be made by withdrawing a juror. Does this act make no change in this respect? Its evident design is to promote the speedy trial of causes on their merits, and [**8]  thereby save expense and delay, and in this sense it is a remedial law, and should be liberally construed to effect this end. The first section allows amendments of any of the proceedings, including the writ, in all suits and actions at law, and the ninth section provides: "That no continuance shall be granted upon amendments of the plots, writs or any of the proceedings, but the case shall proceed as if no amendment had been made, unless the court shall be satisfied that the ends of justice require a continuance." It is too clear for argument that this latter section applies to all cases in which amendments are allowed by the preceding parts of the act. Is it not equally clear that the case is to proceed "as if no amendment had been made," unless the court before which it is tried is satisfied the ends of justice require a continuance? But how can it so proceed if a juror is to be withdrawn? These words, directing the case to proceed as if no amendment had been made, must be stricken from the law, if the withdrawal of a juror in every case of an amendment is still necessary. The record clearly shows that the ends of justice did not require a continuance, because the court asked the [**9]  counsel for the defendant whether the application to amend took them by surprise, and whether the amendment as made altered in any respect the case as presented to the jury? and this inquiry they declined to answer, admitting, by their silence, that an affirmative response could not be given.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*534]  BARTOL, J., delivered the opinion of this court.
This is an action for a malicious prosecution. The declaration was defective, in not averring that the alleged malicious prosecution was "without probable cause." That such averment 

 [*535]  was essential is not now, and has never been, doubted. It constitutes the gist of the action. 2 Chitty's Pl., 608, 609, note(x.) 2 Saund. Pl. & Ev. 652, 654, 659.  7 Cowen 717.
After the jury had been sworn, and all the evidence offered to them, the plaintiff asked leave to amend the declaration, by inserting the words, "without any reasonable or probable cause whatsoever," and "that the declaration might be taken to read as if said averment were made," and the court granted leave to amend at bar as prayed. The defendant [**10]  objected to the amendment being made, without first withdrawing a juror, which objection the court overruled. The defendant also objected to the making of said amendment in the manner proposed, which objection the court overruled, and the defendant excepted. The court directed the trial to proceed before the same jury without their being re-sworn, to which also the defendant excepted.
The first question presented by these exceptions is, whether the leave to amend the declaration operated as an amendment? It is clear that a permission to amend does not, per se, amount to an amendment. A party may have leave to amend, and yet not choose to avail himself of it. The amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.
In this case no amendment was, in point of fact, made in conformity with the leave granted by the court. The declaration remained unchanged; and as it now appears in the record, it contains no averment of "want of probable cause," without which it is insufficient.
We think the court erred in treating the leave to amend as an actual amendment, and for that reason the judgment ought to be reversed.
The exceptions [**11]  in the case present another question, involving the construction of the act of 1852, ch. 177, which is by no means free from difficulty; and as its decision is not material to the determination of the present case, this court forbears to express any opinion thereon, the more especially, because the same was not fully argued, and the cause was not heard by a full court.

 [*536]  The motion in arrest of judgment presents the same questions as were raised by the exceptions taken at the trial. But inasmuch as the reversal of the judgment upon the exception already considered disposes of the present appeal, it is unnecessary to express any opinion upon that motion, and in order that the amendment of the declaration which was allowed by the court below may be properly made, and the case be tried upon its merits, this court will reverse the judgment and award a procedendo.
Judgment reversed and procedendo awarded. 

37 of 47 DOCUMENTS 

ALEXANDER CARR and wife, and others, vs. ALEXANDER H. HOBBS, Adm'r of ISAIAH BELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 285; 1857 Md. LEXIS 37 

DECEMBER, 1857, Decided 

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

The bill in this case, filed by Isaiah Bell, against the administratrix and heirs at law of Jessee Bell, deceased, alleges, that on the 20th of September 1843, the complainant sold and deeded to his son Jesse Bell, a farm containing about twenty-three acres for $ 1800, as it was estimated, that is to say, Jesse was to give him $ 1000 in money, to be paid in instalments, with interest, of $ 100 a year, till all was paid, and was in addition to support, board and clothe complainant as long as he lived, for the balance of the value and consideration for the farm; that he has no doubt his son would have complied with this bargain had he lived, but several years ago he died suddenly, not having paid any part of the purchase money, and never having given, as provided, any part of the board and clothing, but owing complainant all of it, which is still due with interest; that he left a widow, Eliza, (who administered upon his estate, and since married the defendant Carr,) and three infant children his heirs at law; that his personal estate is insufficient to pay his debts and complainant's claim, which is a specific lien on the property.  [**2]  The bill then prays, that the farm may be sold to pay the complainant's said debt, and for general relief.

The deed filed with the bill, upon its face purports to be executed in consideration of $ 1000, acknowledged to have been received by the grantor from the grantee, and there is endorsed upon it a receipt by the grantee to the same effect.

The infants answered by guardian ad litem, disclaiming all knowledge of the matters alleged in the bill, and Carr and wife answer to the same effect, and require full proof. Pending the suit the complainant died, and the appellee, Hobbs, became his administrator.

The proof taken on the part of the complainant, shows that Jesse Bell the grantee, made declarations to several witnesses, that the consideration for the sale of the farm to him was $ 600 in money, and the finding the grantor, his father, in victuals and clothes for life, and also that he had not paid the purchase money. The purport of this testimony, as well as that on the part of the defendants, is sufficiently stated in the opinion of this court.

The defendants excepted to so much of the testimony as refers to the declarations of Jesse Bell, deceased, in regard [**3]  to the consideration of the deed from Isaiah Bell to him, and the non-performance thereof, because such declarations show a different and distinct consideration from that stated in the deed, and repel and rebut the lien set up by the complainant; and they further excepted to the testimony in the case, tending to show the consideration of the deed, because said testimony, if it shows any thing, shows a different consideration from that set forth in the bill of complaint.

The court below, (KREBS, J.,) was of opinion the complainant was entitled to relief, and referred the case to the auditor, to ascertain the balance of the purchase money due and unpaid, according to the proof in the case, and the value of the board and clothing, which the vendee failed to furnish the vendor.

The auditor in his report and account, charges the defendants with $ 600, as the purchase money proved to have been admitted by Jesse Bell, with interest, and the value of the board and clothing of the grantor, and credits them with the estimated rents and profits of the land while in the possession of the grantor, making a balance due the complainant of $ 2214.16. He also reported that the defendants,  [**4]  Carr and wife, as administrators of Jesse Bell, had passed their final account, and distributed the net personal estate amounting to $ 440.09, to his widow and children, but that this distribution was made with full knowledge of the claim in this case, and after suit brought.

The court then passed a decree for the sale of the land, to pay the balance so found by the auditor's account to be due, and from this decree the defendants appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

The acknowledgment and receipt in a deed for the purchase money, is only prima facie evidence of payment, and may be rebutted by parol proof, showing the inability of the grantee to pay it, and his admissions that he had not paid it.

Bills to enforce a vendor's lien, are in the nature of those for the specific performance of contracts; there must be certainty in the agreement, and it should be proved as alleged in pleading.

Where a bill by a grantor to enforce a vendor's lien, relies upon one consideration, and the proof by the grantee's admissions shows another, while the deed states one different from both, the consideration expressed in the deed must be adopted, there being no allegation of fraud or mistake, and no exception to the deed as evidence.

The vendor's claim for unpaid purchase money is a lien, as against the vendee and those claiming under him; the vendee holds the land as trustee for the vendor, and, on the other hand, if the purchaser pays before the estate is conveyed to him, the money will be considered a lien on the estate, in the hands of the vendor for the vendee, or, in case of his death, for his personal representatives.

Generally the vendor's lien cannot be enforced until the remedy against the personalty has been exhausted, but in a case where the personal estate of a deceased vendee has been settled up, and the interests of the defendants, his widow and heirs at law, will be consulted by looking at once to the realty, the claim may be paid out of the proceeds of the land, without remarshalling the assets.  

COUNSEL:
Charles E. Phelps for the appellants, argued:

1st. That the testimony excepted to is inadmissible under the statute of frauds. It goes to set up a secret trust, to wit, that the grantee should support the grantor for life, and is therefore within the 7th section of the statute. It is palpably an attempt to set up a conventional trust, on the foundation of a special parol agreement, which cannot be done. 2 Md. 25, McElderry vs. Shipley. 9 G. & J. 80, Clagett vs. Hall. 4 Russell, 423, Leman vs. Whitley. 27 Penn. State Rep., 144, Stafford vs. Stafford. And as to part performance, the record furnishes no evidence of any acts done by the complainant, which bear the slightest reference to such a contract as he alleges.  [**5]  

2nd. That the testimony is inadmissible, under the common law rule of evidence: that parol testimony is inadmissible to vary, add to or contradict, the express terms of a written instrument. A stronger case for the application of the rule could not be well presented, as the parol proof in this instance contrives both to vary, add to and contradict, the deed at one and the same stroke. The apparent exceptions to this general rule, are 1st, the cases where the receipt of the consideration, may be disproved or explained by parol, and these go upon the principle, that the acknowledgment of the receipt is no necessary or integral part of the deed, but is mere matter of recital, and not a contract or the evidence of a contract. 1 Gill 84, Wolfe vs. Hauver. 3 Md. Ch. Dec., 411, Spalding vs. Brent. 1 J. J. Marshall, 390, Gully vs. Grubbs. But these cases so far from being authorities for admitting evidence to vary the amount of the consideration, distinctly say, that receipts are inserted in deeds mainly to show the actual amount of consideration, with which it is consistent to prove that the specified amount had been assumed by note or otherwise: 2nd. Where the object and only effect [**6]  of the parol proof is simply to rebut a presumption of fraud, it has, in some few cases of peculiar nature, been admitted to explain qualify or enlarge the consideration clause. 9 G. & J. 80, Clagett vs. Hall. 1 Gill 412, Cole vs. Albers & Runge. 3 Md. Ch. Dec., 170, Anderson vs. Tydings. But even this liberty is allowed under stringent qualifications, as appears from the large number of instances where parol proof for that purpose has been rejected. 1 H. & G., 175, Betts vs. Union Bank. 2 Md. Ch. Dec., 447, Sewell vs. Baxter & wife, affirmed in 3 Md. 334. 3 Md. Ch. Dec., 349, Glenn vs. McNeal, affirmed in 4 Md. 87. 3 Md. Ch. Dec., 468, Notley Young's Estate. 3 Md. Ch. Dec., 99, Bullett vs. Worthington, affirmed in 6 Md. 172. 3rd. So also a grantee has been allowed to prove a different consideration actually paid in bar of the vendor's lien, simply to raise an equitable estoppel upon the grantor, and to preclude him from disproving the receipt of the purchase money. 1 Md. Ch. Dec., 392, Elysville Manufacturing Co., vs. Okisko Co., affirmed in 5 Md. 158. 4th. When the controversy is between strangers to the deed and the consideration clause, is in question simply [**7]  as a recital or evidence of an independent fact, it is to some extent open to explanation or even contradiction. 3 Term Rep., 474, Rex vs. Inhabitants of Scammonden.

Subject to these exceptions, (which prove and illustrate the rule,) the consideration clause of a deed is as fully under the protection of the rule as any part of any other written instrument. Especially in a case like the present, where the parol evidence is designed to have an executory operation, in other words, where the object is to reform the contract, contained in and evidenced by the consideration clause, for the purpose of claiming its execution as reformed, or its equivalent in damages, it has been in Maryland invariably rejected, except upon averment and proof of fraud, accident, surprise or mistake. In addition to the cases already cited, see 6 H. & J. 24, Wesley vs. Thomas. Ibid., 435, Watkins vs. Stockett. 2 Gill 409, Henderson vs. Mayhew. 5 Gill 313, Young vs. Frost. 6 Md. 57, Alderson vs. Ames. Ibid., 479, Showman vs. Miller. 9 Md. 185, Beall vs. Greenwade. Ibid., 356, Wilson vs. Watts. To admit such proof would be to reverse one of the wisest and best settled principles of elementary [**8]  law, to throw open the door to frauds and perjuries, and to place the most solemn and deliberate contracts at the mercy of flagrant interpolations. 1 Story's Eq., secs. 153, 154. 2 Do., sec. 1531. 2 Starkie on Ev., 758. 2 Wm. Bl. Rep., 1249, Preston vs. Merceau. 1 Ves. Sen., 128, Peacock vs. Monk. 2 Peere Wms., 203, Clarkson vs. Hanway. 1 Johns., 139, Schermerhorn vs. Vanderheyden. 7 Johns., 341, Maigley vs. Hauer. 5 Greenlf., 232, Emery vs. Chase. 6 Ohio, 246, Stone vs. Vance. 5 Geo. Rep., 373, Wynn vs. Cox. 13 Geo. Rep., 192, Logan vs. Bond.

3rd. That the evidence excepted to was inadmissible, as tending to repel and rebut the lien set up by the complainant. A consideration, in the form of an agreement, to find board and clothing, is inconsistent with an application to enforce a vendor's lien, because such lien is only raised on a definite and liquidated money consideration. The authorities uniformly speak of purchase money, as the only consideration which can support the lien. 4 Kent, 152. 2 Story's Eq., sec. 1217. 2 Wat. Eden. on Injunctions, 208, 209, note. 1 Hilliard on Mortgages, 463, 464. 1 Hilliard on Real Property, 378, 474. This then is an attempt to expand and stretch [**9]  the doctrine of the vendor's lien beyond all precedents, whereas, it should not be extended further than its present limits, because being a secret and invisible trust, it contravenes the policy and spirit of our registry laws. 7 Wheat., 46, Bayley vs. Greenleaf. 7 Sergt. & Rawle, 64, Kauffelt vs. Bower. 3 Ired. Eq., 182, Womble vs. Battle. 3 Leigh., 597, Moore vs. Holcombe. To enforce the vendor's lien, in favor of a collateral agreement or covenant, unliquidated and sounding in damages, would be to set a novel and dangerous precedent. If the special agreement is available at all it sounds in damages, and should be sued on at law. 3 Md. 67, 80, Stewart vs. Redditt. More especially should it not be extended in favor of such a consideration as is here alleged, viz., the support of the grantor for life. The policy of our law is to discourage all impediments or restraints upon the free alienation of real property. Now it is obvious, that land incumbered with a charge or trust like this, is to that extent fettered and made virtually inalienable so long, at least, as the life or lives charged upon it continue in being. If land could be thus charged with the life support of the grantor,  [**10]  it could on the same principle be encumbered with the lives of his whole family, including infants even in ventre. If parties wish to make such an arrangement, let them reduce the terms of it to writing, instead of trusting to hearsay and loose declarations, and then let them place it upon public record in the authentic form of a mortgage. To sustain our views in this particular we rely upon 8 Leigh., 522, Brawley vs. Catron. 13 Grattan, 615, McCandlish vs. Keen. 6 Conn., 458, Meigs vs. Dimock. 8 Barb., 552, McKillip vs. McKillip. 29 Miss. Rep., 67, Patterson vs. Edwards. 3 Simons, 499, Clarke vs. Royle. 3 Mylne & Keene, 655, Parrott vs. Sweetland. 13 Simons, 406, Buckland vs. Pocknell. 21 Beav., 118, Dixon vs. Gayfere.

4th. That the evidence excepted to, tended to prove a different consideration from that set forth in the bill of complaint, and was therefore inadmissible. 4 Md. 459, Mundorff vs. Kilbourn. This case is altogether different from Drury vs. Conner, 6 H. & J. 288. The question here is not simply as to the extent of the relief. It might be very material to consider, whether the consideration to be proved by parol, was of the same nature and simply additional [**11]  to that in the deed, or whether it is not in fact offered as a substitute for, and therefore in contradiction of, the moneyed consideration expressed in the deed, (the case made out by the proof.) 1 H. & G., 186, Betts vs. The Union Bank.

5th. But whether this testimony was admissible or not, the whole fabric of the complainant's case is demolished by the positive testimony of Isaac Bell, who proves that the consideration stated in the deed, was, in point of fact, fully paid and satisfied.

Alexander H. Hobbs for the appellee, argued the following points:

1st. That the consideration clause in a deed may be contradicted and varied by parol evidence. 1 Gill 91, Wolfe vs. Hauver.

2nd. Parol evidence of a greater consideration than that expressed in a deed, is admissible, provided it is of the same kind, and does not change the legal character of the deed. 2 Phillip's Evidence, 353. 1 Greenleaf on Evidence, secs. 304, 200. 1 Parsons on Contracts, 353, note (q,) 355, 356, note (t.) 2 Parsons on Cont., 61, 67, notes (l) and (p.) 2 Amer. Law Reg., (1854,) 265. 4 Mass., 680, 682, Quarles vs. Quarles. 17 Mass., 256, Wilkinson vs. Scott. 1 McCord, 514, Garrett vs. Stuart.  [**12]  1 J. J. Marshall, 390, Gully vs. Grubbs. 7 Pick., 533, 537, Bullard vs. Briggs. 4 New Hamp., 229, Morse vs. Shattuck. 7 Maine, 175, Tyler vs. Carlton. 8 Conn., 304, Belden vs. Seymour. 3 Watts, 156, Jack vs. Dougherty. 16 Wend., 460, McCrea vs. Purmort. 13 Maine, 235, Emmons vs. Littlefield. 7 Watts & Sergt., 399, Strawbridge vs. Cartledge. 5 Barb., 455, Frink vs. Green. 4 Hen. & Munf., 113, Duval vs. Bibb. 10 Sergt. & Rawle, 333, Hayden & Wife vs. Mentzer. 6 Barb., 465, Egleston vs. Knickerbacker. 5 Porter, (Ala. Rep.,) 498, Mead vs. Steger. 3 Sandf. Ch. Rep., 171, 172, Shaw vs. Leavitt. 9 Juris., 633, Clifford vs. Turaill. 1 Md. Ch. Dec., 392, Elysville Manf. Co. vs. Okisko Co. 3 Md. 80. Stewart vs. Redditt. 9 G. & J. 90, Clagett vs. Hall. 1 Gill 423, Cole vs. Albers & Runge. 9 Gill 32, Shepherd vs. Bevin.

3rd. The appellee is entitled to the benefit of the vendor's lien for the whole consideration proved. 3 Md. Ch. Dec., 488, Ringgold vs. Bryan. Beatty's Rep., 461, Richardson vs. McCausland. 2 Story's Eq., secs. 1218, 1219, 1223, 1224. 3 Sugden's Vend., 202. 3 Md. Ch. Dec., 357, Hutchins vs. Hutchins. 10 G. & J. 159, Tolson vs. Tolson.

4th. If, however,  [**13]  it should be determined that the appellee is not entitled to the vendor's lien for the whole consideration, he is, nevertheless, entitled thereto to the extent of the money consideration, and to share in the balance as a general creditor. 3 Md. Ch. Dec., 411, Spalding vs. Brent. 10 G. & J. 100, Gibson vs. McCormick.

5th. Having shown an insufficiency of personal assets, and exhausted the legal remedy, the appellee was entitled to proceed against the realty. 12 G. & J. 482, Richardson vs. Stillinger. 6 G. & J. 498, Pratt vs. Vanwyck. 2 Md. 137, Eyler & Matthews vs. Crabbs.  

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

OPINIONBY:
TUCK 

OPINION:

 [*293]  TUCK, J., delivered the opinion of this court.
This bill was filed by the appellee's intestate, Isaiah Bell, in his life time, against the administrator and heirs of Jesse Bell, to enforce payment of the purchase money of a parcel of land which the former had sold to the latter, and conveyed by deed dated the 20th of September 1843. The consideration of one thousand dollars is acknowledged, in the deed, to have been paid; and there is endorsed thereon a receipt to the same effect.
It is alleged, in [**14]  the bill, that the real consideration was eighteen hundred dollars, as it was estimated, that is to say, one thousand thereof to be paid in money, and the balance by boarding and maintaining the grantor; but there is no reason shown why this part of the consideration was not mentioned in the deed. This statement in the bill is not sustained by evidence; but the complainant's witnesses prove that Jesse Bell admitted to them that the true consideration was six hundred dollars in money, and that he was to support his father during the residue of his life. Evidence was also offered that the consideration, with exception of the maintenance, had been paid. The court below adopted the admissions of Jesse Bell, as to the consideration, and decreed payment accordingly, after allowing the defendants credit for the use and occupation of the land, which was in possession of the grantor from a short time after the deed until his death.
The acknowledgment and receipt for the purchase money being only prima facie evidence of payment, ( Higdon vs. Thomas, 1 H. & G. 139,) the appellee seeks to rebut the presumption, by showing the pecuniary condition of Jesse Bell, his inability [**15]  to have paid so large a sum of money, and admissions made by him, that he had not paid for the land. We consider the evidence sufficient, laying out of view the testimony of Isaac Bell, on which very little, if any, reliance can be placed. We do not intimate that this witness stands impeached, but we think he must have been in error as to the matters of which he speaks, touching this alleged payment. There is confusion in his testimony which cannot be reconciled with the idea that Jesse Bell ever paid this money, and 

 [*294]  he admitted, to the other witnesses, that he had not paid it. This view of the case is supported by other circumstances proved in the record. If he had paid for the land, we do not suppose he would have left it, and remained away until the time of his death, allowing the grantor to remain in possession, while he was toiling elsewhere for the support of his family. On the contrary, he said he had left the place, that he and his father could not live together, and that he wished him to pay the expense of the deeds, and take the land back.
The purchase money being due, we are to consider what it was, and how its payment can be enforced. Bills of this kind are [**16]  of the nature of those for specific performance of contracts.  Elysville Co. vs. Okisko Co., 5 Md. 152. There ought to be certainty in the agreement, and it should be proved as alleged in pleading.  3 Md. 480, Canal Co., vs. Young. 4 Md. 459, Mundorff vs. Kilbourn. 5 Md. 18, Stoddert vs. Bowie's Exc'r. Here the bill relies upon one consideration, the proof shows another, while the deed states one different from both these. We have only the declarations of the grantor, as made in the bill, and those of the grantee, as proved by witnesses. If the statement in the bill were thus established, we should merely have to decide whether admissions by the parties of the same consideration, should prevail over the deed; but here they do not agree. Solemn instruments are not to be lightly dealt with. They are supposed to furnish the best evidence of the mind of the parties, though, in some cases, they will be allowed to have effect against their literal meaning; or rather, a different agreement will be enforced, as where fraud or mistake is alleged and proved, which is not the predicament of these parties. The deed, [**17]  for aught that appears, was drawn as it was designed to be, but the allegation is, that something beyond the sum stated was intended as an additional consideration. If the bill states the transaction correctly, then the parties did not assent to the same thing. Probably board and maintenance of the grantor was part of the agreement; but the question is, whether it was additional to, or part of, the money consideration? This latter idea, perhaps, Jesse Bell meant to convey when he conversed with his brothers. 

 [*295]  But, independently of the want of certainty as to the consideration, if we look to the grantor's statement in the bill, contradicted as it is by Jesse Bell's, relief could not be decreed on the proof of the grantee's admissions, because the bill is not framed upon that state of case, and the admissibility of these admissions has been excepted to, whilst there is no exception to the deed as evidence. Now, differing as the parties to the deed appear to have done, as to the parol consideration, and there being no evidence of either statement, even if such were admissible to control the deed, on which point we express no opinion, we think the written expression of the parties,  [**18]  about which there can be no mistake, should be accepted as the safest guide. By this standard of proof we shall avoid the risk of violating the policy of the law as to written and parol evidence, and, probably, reach the justice of the case as nearly as if either the view of the grantor or grantee were adopted as to the consideration. It thus becomes unnecessary to determine whether the board and maintenance claimed, can be recovered as additional to the consideration contained in the deed.
Next, as to the claim itself, that is, whether it be a lien or not. The record shows that Jesse Bell's personal estate has been administered, and that the balance in the hands of the administratrix, after paying the others, was not sufficient to pay this claim. As that balance was distributed to the widow and children, we may suppose there are no other creditors except this complainant. We are, therefore, relieved from considering the preference of such a claim, for unpaid purchase money, over creditors becoming such after the deed is placed upon record. That it is a lien as against the vendee and those claiming under her, has been affirmed in England, and recognized by the Court of Appeals, in [**19]  Schnebly vs. Ragan, 7 G. & J. 120, where it is said: "A vendor parting with the legal title, still retains his lien as a security for the payment of the purchase money, and the vendee holds the land as trustee for the vendor. Prima facie the equitable lien exists, and it lies upon the vendee to show a waiver of it.  1 Johns. Ch. Rep. 308. So, on the other hand, if the purchaser of an estate 

 [*296]  prematurely pays the purchase money, before the estate is conveyed to him, the money will be considered as a lien on the estate in the hands of the vendor, for the vendee, or, in case of his death, for his personal representatives. 2 Madd. Ch., 104, 105."
We dissent from the decree, in so far as it affirms the correctness of the auditor's account, as to the amount allowed the complainants, which, as we have said, should have been charged against the defendants at one thousand dollars, with interest, crediting them with the annual valuation of the premises while in possession of the grantor, upon which, as allowed by the auditor, no point was made at the hearing, and we take it to be according to the proof.
As the personal estate appears [**20]  to have been settled, this claim may be paid out of the proceeds of the land, without remarshalling the assets, thereby saving expense without affecting the ultimate result. Generally, the lien could not be enforced until the remedy against the personalty had been exhausted, but here the interests of the defendants will be consulted by looking at once to the realty.
Without reversing the decree, the cause will be remanded, in order that another account may be taken as to the amount due, and for further proceedings under the decree. Act of 1832, ch. 302, sec. 6. Each party to pay his own costs on the appeal.
Cause remanded. 

38 of 47 DOCUMENTS 

HERTZ BLONDHEIM, SIMON GOODMAN, et al., vs. ROBERT MOORE and CHARLES MOORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 365; 1857 Md. LEXIS 45 

DECEMBER, 1857, Decided 

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

The original bill in this case, filed on the 19th of June 1857, by the appellees, alleges that Hertz Blondheim, from the 17th of November 1856, had been purchasing goods, on a credit of six months, from the complainants, to the amount of $ 1183.88, of which he has paid no part, though the sum of $ 319.77 thereof is now due; that Blondheim owes large amounts over and above his indebtedness to the complainants, and now represents his liabilities at between $ 12,000 and $ 14,000; that having contracted these debts, and being hopelessly insolvent, he, on the 7th of May 1857, executed to Simon Goodman a deed of certain furniture, together with the whole stock of goods on hand in the store and dwelling No. 57, Eutaw street, for the consideration, as is pretended by the deed, of $ 3000; that afterwards, on the 16th of June 1857, being then hopelessly insolvent, he executed a deed of all his stock in trade, and all debts and claims due him, and all book-accounts, bonds, bills, evidences and vouchers concerning the same, to Abraham Rosenberg, in trust, to pay the first claims of all such creditors as should, within ninety days, assent to [**2]  the deed and execute releases, which deed contained a provision that the trustee should not be answerable for any deterioration or loss to the property, "unless the same be consequent upon his own wilful commission or neglect."

The bill then states, that complainants are informed and believe that said Goodman came from Germany here about twelve months ago; that since he came to this country he has been an employee; that he is the brother of the wife of Blondheim; that when he came to this country, he was without any considerable means with which to purchase the amount of goods which, by the deed to him, he is said to have purchased for cash. That complainants are informed and believe, and therefore charge, that said Goodman is an unmarried man; that the property mentioned in the deed to him is now, and has been since the making thereof, in the possession of Blondheim, who is selling and disposing of the same in the course of his business, and has been replacing the goods so sold with others purchased, on credit, of complainants and other creditors, and that Goodman has not pretended to use any control over the merchandize or furniture.

The bill further states, that complainants [**3]  are further informed and believe, and therefore charge, that Blondheim is now engaged, under cover of these two deeds, in endeavoring to obtain from his creditors a release on paying fifty per cent. of their claims; that they are informed and believe, and therefore charge, that Goodman paid no money, or other valuable consideration, for the deed to him, or, if so, no considerable portion of the amount mentioned therein, and that said deed was not made bona fide, but to deceive the creditors of Blondheim, and, in connection with that to Rosenberg, to obtain from his creditors a release of their claims for less than he is able and should pay them; that they are informed and believe, and therefore charge, that if Goodman or Blondheim, or either of them, had notice that complainants were about to apply to this court, to obtain possession of the property mentioned in said deed to Goodman, they would remove the same out of the jurisdiction of the court, and secrete it, for the purpose of hindering, delaying and defrauding the creditors of Blondheim; that complainants therefore charge, that this deed was contrived and devised of malice, fraud, covin and collusion, and to the end, purpose [**4]  and intent to hinder, delay and defraud the creditors of Blondheim in the collection of their debts, and in secret trust for his benefit, and they are advised the same is void, and bears on its face the evidence of fraud.

The bill then propounds special interrogatories to Blondheim and Goodman, and prays that the deed to the latter may be declared void, that a receiver may be appointed to take possession of the property mentioned in it, in order that the same may be sold and applied to pay the debts of Blondheim, and that both Blondheim and Goodman may be restrained, by an injunction, from selling or disposing of, or retaining from the receiver, any of the property mentioned in said deed, and for general relief.

On this bill (which was sworn to) the court (KREBS, J.) granted the injunction, and, without notice to the defendants, or a rule to show cause, appointed a receiver, upon the execution and approval of the necessary bonds.

On the 26th of June 1857, Blondheim and Goodman, the only parties who were made defendants thereto, filed their answers to this bill, and entered a motion to dissolve the injunction and discharge the receiver, which motion was set down for hearing.  [**5]  Afterwards, on the 7th of July following, the complainants filed an amended bill, (the allegations of which need not not be stated in this case,) making Rosenberg a party, and calling upon him to answer both bills, and upon Blondheim and Goodman to answer the amendment, and praying that Rosenberg may be restrained, by injunction, from disposing of, or retaining from the receiver, any of the property mentioned in the deed to Goodman, and that the receiver may be authorized to take possession of all said property.

The court granted the injunction as prayed by this amended bill, and before answer to the same, all of the defendants appealed "from the orders appointing receiver and granting injunctions in this case," and after the appeal bond had been filed and approved, the court, upon application of the appellants, passed an order directing the receiver to deliver to Rosenberg, trustee of Blondheim, all the property and effects which he had received as receiver, under his appointment in this case, and to report and account to the court therefor.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

An appeal will not lie from an order granting an injunction and appointing a receiver, until after answer filed; the act of 1853, ch. 374, does not change that of 1835, ch. 380, in this respect, but only provides the effect and consequences of an appeal when taken.

Under the act of 1853, ch. 374, when an appeal is taken from an order granting an injunction, and an appeal bond given, as therein provided; the operation and effect of the injunction wholly and entirely ceases.

If, on such an appeal, the order is affirmed, and the thing on which the injunction was intended to operate, exists in specie in the possession of the defendant, the injunction is restored to its original vigor, and if the thing has been consumed or disposed of, the complainant's remedy is on the appeal bond.

To justify the appointment of a receiver, it must appear that the claimant has title to the property, and the court must be satisfied, by affidavit, that a receiver is necessary to preserve it; the court will never appoint a receiver merely because the measure can do no harm.

Fraud or imminent danger, if a receiver should not be appointed, must be clearly proved, and unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application.

The allegations of a bill, for an injunction and receiver, that the complainants are informed of certain matters, without stating when or whence the information was obtained, do not make such a case of fraud and imminent danger as to justify the granting of the injunction, or the appointment of a receiver, without notice to the defendants.  

COUNSEL:
W. C. N. Carr and William Pinkney Whyte for the appellants:

1st. There was nothing in the [**6]  original bill to justify the court in passing the order appointing a receiver, and granting an injunction against Goodman and Blondheim. The bill of sale to Goodman, if made in good faith, conveyed the legal title to him, even though Blondheim was in embarrassed circumstances at the time. 3 Md. 212, Glenn vs. Grover, et al. The simple allegation of indebtedness, and that the bill of sale was not bona fide, will not justify the interference of a court of equity, by the appointment of a receiver. The court will not exercise this high power, without notice to the defendants, or a rule to show cause, nor before answer filed, unless in a case of pressing necessity, and on clear proof that the property is in imminent peril, and that it is absolutely necessary that a receiver should be appointed to meet the exigency of a special case. 1 Md. Ch. Dec., 489, Thompson vs. Diffenderfer. Ibid., 70, Clark vs. Ridgely. 3 Md. 99, Furlong, et al., vs. Edwards. 4 Md. Ch. Dec., 39, Walker vs. House. 10 Md. 503, Uhl vs. Dillon. Edwards on Receivers, 19. 1 Bland, 213, H. K. Chase's Case. Ibid., 422, Williamson vs. Wilson. 13 Ves., 266, Middleton vs. Dodswell. 16 Ves., 59, Lloyd vs. Passingham,  [**7]  and same case in 3 Merivale, 697. 2 Brown's Ch. Rep., 157, Vann vs. Barnett. 2 Paige, 450, Verplanck vs. Mercantile Ins. Co. 7 Paige, 56, Austin vs. Figuera. 8 Paige, 373, Sandford vs. Sinclair. Not only is there no proof in this case, of imminent danger to the property, but if we are confined to the allegations of the bill, we find there no averment, whatever, of any fact, which can show to the court any such danger or fraud in the case; with the exception of the fact of indebtedness, every other allegation in the bill is based upon information and belief. Such allegations do not come up to the clear proof required by the authorities, to justify the appointment of a receiver.

2nd. It has been suggested by the appellees, that the appeal from the order granting an injunction against Rosenberg, upon the amended bill, should be dismissed, because no answer was filed to this bill before the appeal was taken. But it is submitted, that under the act of 1853, ch. 374, there is no necessity for the filing of an answer before an appeal is taken, and that this act supersedes those of 1835, chaps. 346 and 380, in relation to appeals from orders appointing receivers and granting injunctions,  [**8]  and now gives the right of appeal from any order of the court in such cases. It is further submitted, that upon giving bond as provided for by this act, the appeal stays the operation of the order in the same manner as an appeal from a final decree. If this appeal, then, properly brings up for review the order passed upon the amended bill, it is insisted, that the case made by that bill does not warrant the passage of such order.

P. McLaughlin and J. M. Campbell for the appellees:

1st. As regards the order granting the injunction upon the amended bill, the appeal must be dismissed, no answers having been filed at the time the appeal was taken. The filing of an answer is expressly made a condition precedent to an appeal from such an order, by the acts of 1835, chaps. 346 and 380, and the provisions of these acts are in nowise changed, in this particular, by that of 1853, ch. 374.

2nd. In considering the appeal from the order passed upon the original bill, this court is confined to the case made by the bill; the answers cannot be looked to. 10 Md. 418, McCann vs. Taylor. Looking then to the allegations of the bill, it is insisted, that the case thereby made is one [**9]  of actual fraud and imminent danger, justifying the action of the court in appointing a receiver. 2 Jacob's, 280. 6 Madd., 38, Stellwell vs. Williams. 2 Brown's Ch. Rep., 132, Vann vs. Barnett. 31 Eng. Law & Eq. Rep., 436. Edwards on Receivers, 98. 2 Story's Eq., secs. 826, 827, 834. 1 Paige, 299, Haggerty vs. Pittman. 4 Paige, 575, Bloodgood vs. Clark. 3 Johns. Ch. Rep., 48, Boyd, et al., vs. Murray. 9 Gill 472, Speights vs. Peters. 1 Bland, 213, H. K. Chase's Case. 1 Md. Ch. Dec., 87, Brown vs. Stewart. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 10 Md. 466, Rose & Gauss vs. Bevan.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*370]  LE GRAND, C. J., delivered the opinion of this court.
The original and amended bills show these facts: that Blondheim, being heavily indebted and insolvent, on the 7th day of May 1857, executed a bill of sale of certain property therein specified, for the consideration of $ 3000, to Simon Goodman, and that on the 16th of June 1857, he executed a deed of trust to Rosenberg, of all his stock in trade, for the benefit of such of his creditors as should release him in ninety days, providing by the same,  [**10]  that the trustees should not be liable for any loss or deterioration, but what might be occasioned by his own wilful commission or neglect.
There were two bills filed, an original and an amended bill; the objects of both being the same, namely, to have declared fraudulent and void the conveyances made by Blondheim as made with the design to hinder, delay and defraud creditors, and also to procure an injunction and the appointment of a receiver. Injunction was granted and receiver appointed upon the original bill, and an injunction granted upon the amended bill.
Rosenberg failed to answer either bill, and Blondheim and Goodman failed to answer the amended bill. An appeal has been taken from the order passed on each bill. It is contended, 

 [*371]  on the part of the appellees, that an appeal will not lie until after answer filed. This is undoubtedly the case under the decisions construing the act of 1835, ch. 380, and we think the law is not changed in this respect by the act of 1853, ch. 374. This latter act only provides the effect and consequence of an appeal, when taken from the orders specified in it, and a bond shall be given. It does not contemplate a change in the circumstances [**11]  necessary preliminarily to an appeal under the act of 1835. If this be so, then the appeal of Blondheim, Goodman and Rosenberg, from the action of the court on the amended bill must be dismissed. This confines us to the case made by the original bill. But before we proceed to examine its averments, we shall state what we consider to be the operation of an appeal, under the act of 1853, ch. 374. We do this, because it is but proper the profession should understand the views of the appellate court, in regard to a statute which is daily acted upon, affecting, as it does, most materially, the business of a commercial and manufacturing community. That act is as follows:--"That in all cases where an appeal is taken from an order of a court having equity jurisdiction, either granting an injunction or appointing a receiver, or from an order refusing to dissolve an injunction, the operation of such an order shall not be stayed in any case, unless the party praying the appeal give bond, with security, to indemnify the other party from all loss and injury which such party may sustain by reason of such appeal, and the staying of the operation of such order; such bond to be approved by the [**12]  judge granting the injunction, or the clerk of the court where the proceedings are pending; and upon the giving of such bond, the appeal shall stay the operation of all such orders, in the same manner as appeals do from final decrees."
It is not to be presumed that the legislature meant nothing by this act. To our minds, if the English language means anything, this act distinctly provides, that an appeal in the cases authorized by it, (where a bond is given,) "shall stay the operation of all such orders in the same manner as appeals do from final decrees." What is this manner? It is nothing 

 [*372]  more than this, everything is stayed, suspended, until judgment shall be pronounced by the appellate tribunal; that is to say, the "operation" and "effect" of the injunction wholly and entirely ceases. Such was the effect and operation of an appeal, under the act of 1835, ch. 380, except in the case of an injunction to stay waste. The act of 1853 does away with the exception. If on appeal from an order granting an injunction, this court should affirm the order, and the thing on which the injunction was intended to operate should exist in specie, in the possession [**13]  of the defendant, then the injunction is restored to its original vigor; or if the thing has been consumed or disposed of, then the complainant must proceed on the bond, which is given for the express purpose of indemnifying him "from all loss and injury" which he may sustain because of the appeal. We are unable to give any other meaning to the act. The objection that before the bond can be made available, practically, to the indemnification of the aggrieved party, the obligors may become insolvent, however true, can nevertheless have no weight in the construction of the act. It is an objection which would apply with equal force to any other bond. The act provides, that the bond shall be approved by the judge granting the order, and we are bound to assume this power will be exercised with every caution, and not until the court is fully certified of its sufficiency. If this does not guarantee indemnification to the party, then the failure is owing to the inadequacy of our legislation and the mutability of human affairs. The foresight of man is not competent to guard against all future contingencies. We may add, that when all things are calmly considered, perhaps it will be found [**14]  that under our acts of Assembly, and the decisions thereon, the creditor has a very decided advantage over his debtor. He is permitted to state his own case in his own way, restrained only by his conscience, and upon such statement, if full enough, to break up the business of his debtor. If the latter appeal from the order, although his conscience has been probed, yet, he has no benefit from his own testimony; his case is tried and determined solely on that of his adversary. This, to say the least of it, does not look much 

 [*373]  like equality. To deny an appeal to the defendant, until he shall have answered the bill, and then to say, the answer shall not at all be looked to, is not without the appearance of trifling; it is to command an act, which, when performed, is to be taken as wholly void of value. The only reason we can imagine for such a procedure is, that it enables the complainant to "fish out" a case from the answer of the defendant, so as to furnish him with the aids necessary to alter his case if need be. It is a species of jugglery not altogether worthy of commendation. It is, however, the law, and we are bound by it.
The injunction was granted and the receiver [**15]  appointed, on the application of the complainants, without notice to defendants, or a rule for them to show cause.
The material averments of the original bill, (the only one properly before us,) may be thus stated. It is alleged, that Blondheim, had purchased of the complainants, goods to the value of $ 1183.83, no part of which amount he has paid, although, at the time of the filing of the bill, there was due of it $ 319.97; that he owes to other creditors large sums, amounting in the aggregate to twelve or fourteen thousand dollars; that Blondheim being so indebted, and hopelessly insolvent, he, on the 7th of May 1857, executed and delivered to Goodman a deed of certain furniture, together with the whole stock of ready made clothing, in store and dwelling No. 57, Eutaw street, for the consideration, "as is pretended by the deed aforesaid, of three thousand dollars." It further alleges and charges as follows, that the complainants "are informed and believe, that the said Simon Goodman came from Germany here, about twelve months ago, that since he came to this country he has been an employee; that he is the brother of the wife of said Hertz Blondheim; that when he came to this country [**16]  he was without any considerable means with which to purchase the amount of goods, which, by the deed, he is said to have purchased for cash." The bill continues, that the complainants are informed and believe that Goodman is an unmarried man; that the property is now, and has been since the making of the deed, in the possession of Blondheim, 

 [*374]  and that he is selling and disposing of the same in the course of his business, and has been replacing the goods so sold therefrom, with others purchased on credit.
It is only necessary to refer to a few authorities, to exhibit the law applicable to a case like this. The Chancellor in the case of Clark, et al., vs. Ridgely, et al., 1 Md. Ch. Dec. 70; in the case of Thompson vs. Diffenderfer, Ibid., 489; and in the case of Walker's Adm'r, vs. House, 4 Md. Ch. Dec. 39, has brought together the leading decisions, wherein the doctrine applicable to the appointment of a receiver is clearly laid down. Without quoting, at large, from the cases referred to and approved by him, it is sufficient to say, they will be found to establish the following propositions:--1st. That the power of appointment [**17]  is a delicate one, and to be exercised with great circumspection. 2nd. That it must appear the claimant has a title to the property, and the court must be satisfied by affidavit, that a receiver is necessary to preserve the property. 3rd. That there is no case in which the court appoints a receiver merely because the measure can do no harm. 4th. That "fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved;" and 5thly. That unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application.
This is really the meaning of the cases. Different judges employ different language to express their ideas, but they all mean the same thing; there must be fraud and imminent danger proved, in a case like the present.
Keeping these limitations in view, let us enquire what are the evidences of fraud and imminent danger alleged in the bill? With the exception of the indebtedness to complainants, they profess a total ignorance of all the other facts. They say they are "informed" that Goodman has been in this country but about a year; that they are "informed"  [**18]  he has been, during that time, an employee; that they are "informed" he is an unmarried man, and that since the making of the deed, Blondheim has been disposing of the goods in the store and replacing them with others. We are nowhere told from whence 

 [*375]  this information was obtained, nor when. The whole is left in doubt; the only fact which the bill alleges, (other than the amount of indebtedness,) of which proof is offered to test its accuracy, is, that the deed is fraudulent on its face; and this, by the deed itself, is shown not to be so. It is on its face a valid instrument for a valid money consideration. On the whole we do not think this such a case of fraud, and imminent danger, as justified the court in granting the injunction, nor do we recognize it as one, (without notice to the defendants first having been given,) in which a receiver should have been appointed. We shall, therefore, in this case, reverse the order of the court below granting an injunction and appointing a receiver upon the original bill, and dismiss the appeal from the order granting the injunction upon the amended bill, because taken before answer filed to such bill. The cause will also be remanded [**19]  for further proceedings.
Order reversed and cause remanded. 

DISSENTBY:
TUCK 

DISSENT:

TUCK, J.--I dissent from so much of the court's opinion as places a construction on the act of 1853, ch. 374.
I think the appeal does not remove the injunction out of the defendants' way, so as to place him in the same condition, in reference to the property, as if the writ had not issued, but that it merely stays further proceedings, pending the appeal, and leaves the property just where it was at the time of the appeal.
This I consider the effect of the last clause of the act, which limits the effect of such appeals, to that produced by an appeal from a final decree, which, as I understand the law, arrests the execution of the decree, and does nothing more.
As to the other views expressed by the court, I concur in the opinion, and, in the order of reversal.  

39 of 47 DOCUMENTS 

ABRAHAM ROSENBERG and HERTZ BLONDHEIM, vs. ROBERT MOORE and CHARLES MOORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 376; 1857 Md. LEXIS 46 

DECEMBER, 1857, Decided 

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

The original bill in this case, filed on the 20th of June 1857, by the appellees against the appellants, besides containing the allegations in the original bill, in the preceding case, (ante 365,) makes Rosenberg a party defendant, and alleges that the deed of trust to him, of the 16th of June 1857, together with the previous deed to Goodman, were parts of a scheme devised by Blondheim, to enable him to hinder, delay and defraud his creditors; that though it contains a stipulation exacting releases from creditors, it does not subject to their claims all the property of the grantor, and does not, by its terms, convey all his property, and is, therefore, void upon its face. It further charges, that this deed of trust was contrived and devised by malice, fraud, covin and collusion, and was made, executed, delivered and accepted to the end, purpose and intent to hinder, delay and defraud the creditors of Blondheim in the collection of their debts; and then prays that the same may be declared void, and the property sold to pay the debts of Blondheim, and for general relief.

This deed of trust, filed as an exhibit with the bill,  [**2]  conveys to Rosenberg "all and singular the stock in trade" of Blondheim, now in his possession, consisting of dry goods, and all debts, &c., due him, and all books, accounts, bonds, bills, evidences and vouchers concerning the same, and all his right, &c., in the goods, &c., hereby conveyed; to have and to hold the same unto the said Rosenberg, his executors, &c., "with the exception of the stock and furniture in a house and store on Eutaw street, in said city, which is mentioned and particularly described in a bill of sale from said Blondheim to a certain Simon Goodman, dated the 7th of May 1857, and recorded, &c., which bill of sale was executed for the purpose of securing to said Goodman the sum of money therein mentioned as its consideration, and which is declared to be the meaning and intention of the parties hereto, but if said stock and furniture is more than sufficient to pay said sum, then the balance thereof, together with the above mentioned stock and chattels, in trust," &c. Then follow the stipulations in regard to releases from creditors, and the responsibility of the trustee, stated in the bill in the preceding case, (ante 366.)

Afterwards, on the 8th of July 1857,  [**3]  the complainants, under leave, filed an amended and supplemental bill, in which, after repeating the allegations of the original bill, they allege, by way of supplement and amendment, that on the 19th of June 1857, they filed in this court their bill against Blondheim and Goodman, praying, among other things, that the deed to the latter, of the 7th of May 1857, may be vacated, and for an injunction and receiver, as stated in the preceding case, (ante 365;) and that, by an order of this court, a receiver was appointed, who demanded the property he was thereby authorized to take into his possession, of Bondheim and Goodman, who declined to deliver the same, and told him they had delivered possession thereof to Rosenberg; that the receiver then, as complainants are informed and believe, and therefore charge, demanded possession of this property from Rosenberg, who also refused to deliver the same. The bill further charges, that after the execution of this deed of trust, Rosenberg, as complainants are informed and believe, and therefore charge, was repeatedly requested, by creditors of Blondheim, to take an inventory of the goods therein mentioned, but declined, and insisted he had been [**4]  advised not to do so, as he would not be liable for the loss of any of the property except that which would actually come into his possession, and instead of examining the trust property, and, at an early day, taking an inventory thereof, has not yet done so, but has placed the same in the possession and under the control of a man without credit, and whose character for honesty is notoriously bad, and, in his care and management of the trust property, disregards the wishes and interests of complainants, and all his other creditors who are not on terms of friendship with Blondheim. It further charges, that the complainants, at the instance of other creditors, and moved by their own feelings, fearful that this deed of trust was made to enable Blondheim, under cover thereof, to remove and secrete from his creditors a portion of the property therein mentioned, directed the receiver to employ watchmen to watch the property he was authorized to take into his possession, and also that mentioned in the deed of trust, to prevent it from being stolen or secretly removed by Blondheim, or any other person, until Rosenberg would cause an inventory thereof to be taken; that they are informed and [**5]  believe, and therefore charge, that the receiver recently entered the store, No. 59, Eutaw street, in which it was supposed there was, at the time, a stock of goods worth from $ 3000 to $ 5000, and in which a stock of that amount was usually kept by Blondheim, and found goods not worth more than from $ 500 to $ 1000, which has confirmed them and other creditors, as they are informed and believe, and therefore charge, in their fears that this deed of trust was made for the purpose of enabling Blondheim, under cover thereof, to remove and secrete a portion of the property thereby conveyed, (as he denies,) in fraud of his creditors; that being so situated, and no inventory of the property having been taken, complainants will not, they fear, be able, in a suit against Rosenberg, to show the extent of what they have or may lose, by secret removals as aforesaid. The complainants therefore charge, that this deed of trust was devised in collusion, confederacy and guile, between Rosenberg and Blondheim, and other persons to them unknown, for the purpose of hindering, delaying and defrauding them, and other creditors of Blondheim, in the manner aforesaid, and by other ways and means, in the [**6]  collection of their debts; and to allow Rosenberg longer to remain in possession of the trust property, would be, as complainants fear, believe and charge, to give to Rosenberg and his confederates a greater opportunity of removing and secreting from creditors, and in fraud of them, the trust and other property aforesaid. The bill then prays for a receiver to be appointed, to take possession of the property mentioned in the deed of trust, and for an injunction to restrain Rosenberg and Blondheim from disposing of or retaining the same from the receiver.

Upon this bill the court (KREBS, J.) granted an injunction, and, without notice to, or a rule upon the defendants to show cause, appointed a receiver as prayed. From this order the defendants, after filing their answers, appealed, and having filed an approved appeal bond, the court, on their application, ordered the receiver to deliver up to Rosenberg the property which he had received under his appointment as receiver, and to report and account for the same to the court.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

An assignment for the benefit of creditors, and stipulating for releases, must, on its face and by its terms, convey all the property of the grantor, and unless it does so, it is void, no matter whether it does, in fact, convey all his property or not.

A bill charging that the trustee under such a deed has placed the property under the care of a person of notoriously bad character, and that by his and the grantor's refusing to allow an inventory of the property to be made, if loss should occur, the creditors will be deprived of the necessary proof to show the extent of such loss, makes a case of imminent danger, justifying the granting of an injunction and the appointment of a receiver, without notice to the defendants.  

COUNSEL:
W. C. N. Carr and Wm. Pinkney Whyte for the appellants, argued, that the deed of trust from Blondheim to Rosenberg [**7]  was a valid and legal instrument, and conveyed the legal title to him, and for this they cited Burrill on Assignments, 208; 6 Watts & Sergt., 300, Hennessy vs. Western Bank; 6 G. & J. 218, State vs. Bank of Maryland; 4 Gill 128, McCall vs. Hinkley; 8 Gill 472, Kettlewell vs. Stewart; 3 Md. 11, Green & Trammell vs. Trieber. They further argued, that a receiver should not have been appointed, especially in this case, to take the possession out of the hands of a trustee who held the legal title. It should have been proved that the property was in imminent peril. There is no such direct charge, but merely that the complainants were fearful that the deed was made for the purpose of enabling Blondheim to remove or secrete the property from his creditors. There is no charge of malfeasance on the part of Rosenberg, nor of his insolvency. The fund was in no danger, for the trustee was bound to give bond, under the act of 1845, ch. 166, and the complainants do not deny his respectability, but merely allege they fear they may not be able, in a suit against him, to show the extent of their loss. They relied upon the same authorities on this point as in the preceding case, and also [**8]  cited 3 Md. 99, Furlong & Miller vs. Edwards; 7 G. & J. 467, Bank of Maryland vs. Ruff; Edwards on Receivers, 22; 1 Ambler, 311, Mordaunt vs. Hooper; 2 Molloy, 81, Lloyd vs. Trimleston; 2 Younge & Coll., 353, Smith vs. Smith.

P. McLaughlin and J. M. Campbell for the appellees, insisted, that the deed was void, because it requires, in effect, that the creditors shall sanction a security granted by Blondheim to Goodman, without examination, and where it is plain that perjury has been committed, and also because it seeks to exonerate the trustee from the effects of negligence, and because it does not purport to convey the entire property of Blondheim. 3 Sandford, 545, Litchfield vs. White, and same case in 3 Selden, 438. Burrill on Assignments, 209, 280. 3 Md. 11, Green & Trammell vs. Trieber. 8 Md. 418, Malcolm vs. Hodges. They also argued, that, looking to the bill alone, as this court is bound to do on this appeal, it makes a strong and irresistible case for an injunction and a receiver. Besides legal, there is actual, fraud charged (and, for the purpose of this argument, admitted) against both Blondheim and the trustee, Rosenberg, and mal-administration by the [**9]  latter. See authorities cited in the preceding case.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*380]  LE GRAND, C. J., delivered the opinion of this court.
We are of opinion that the case made by the original and amended bill, justified the action of the circuit court. The deed assailed does not, in words, convey all the property of Blondheim; that which it did convey, for the benefit of his creditors, may, indeed, have been all, but its terms are not inconsistent with the fact that he may have retained a considerable amount of property, real and personal. Whilst the law authorizes a debtor to make a deed, such as the one in this case, it yet demands it should be a conveyance of all his property, without any reservation, whatsoever, to himself.  Green 

 [*381]  & Trammell vs. Trieber, 3 Md. 11; and Sangston vs. Gaither, 3 Md. 40. This is not plainly manifest on the face of the deed. It should have affirmatively so appeared. As was said in the case of Malcolm vs. Hodges, 8 Md. 418, the validity of a deed of trust, for the benefit of creditors, must be determined [**10]  by the deed itself, without reference to extrinsic facts; such an assignment, to be valid, must convey all the property of the debtor, and, in terms, dedicate the whole for the benefit of his creditors. Besides, the bill shows the property to be in imminent danger. It avers, that it has been placed under the care of a person of notoriously bad character, and that, by the refusal of the defendants, and the custodian of the goods, to allow an inventory to be made, that if loss should occur, complainants and the other creditors will be deprived of the necessary proof to show the extent of such loss. These circumstances, we think, bring this case within the rules laid down in the case of Blondheim, et al., vs. Moore, et al., decided at this term, (ante 365.)
Order affirmed, and cause remanded. 

40 of 47 DOCUMENTS 

HARLOW W. HEATH and PERLEY R. LOVEJOY, vs. EDWARD IRELAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 388; 1857 Md. LEXIS 48 

DECEMBER, 1857, Decided 

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

A bill was filed by the appellee against the appellants, to vacate for fraud as against creditors, a bill of sale of certain personal property made by Heath to Lovejoy. Answers were filed by the defendants, denying the fraud charged, a replication filed, and a commission to take testimony ordered to be issued. The complainant then applied for an order allowing him to examine the defendants as witnesses. This application was resisted by the defendants, but the court (KREBS, J.) passed the order as prayed, from which this appeal was taken by the defendants.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

No appeal lies from an order allowing the complainant to examine the defendant as a witness; such an order is merely interlocutory in its nature, not final, and determines no question of right between the parties.  

COUNSEL:
H. Stockbridge for the appellants.

Benj. C. Barroll for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*389]  BARTOL, J., delivered the opinion of this court.
The order of the circuit court, from which this appeal was taken, is merely interlocutory in its nature, not final. It determined no question of right between the parties; and from such an order, it has been settled by repeated adjudications in this court, no appeal will lie.
The propriety of the passage of the order [**2]  is, therefore, not a question now properly before us, and the appeal must be dismissed.
Appeal dismissed. 

41 of 47 DOCUMENTS 

CHARLES CARROLL'S Lessee, vs. THE GRANITE MANUFACTURING COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 399; 1857 Md. LEXIS 50 

DECEMBER, 1857, Decided 

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

Ejectment brought by the appellant, to recover a small piece of land described on the plats filed in the case, and in the possession of the appellee. There is no dispute as to title, the controversy being whether the land in question is embraced in the third exception, contained in a deed to Carroll from the Union Bank of Maryland, dated the 30th of October 1844. This deed conveys to Carroll part of a tract of land called "West Ilchester," by metes and bounds, which include the land in dispute, but from the operation of that deed three parcels are excepted, the third exception being as follows: "Thirdly, saving and excepting a small part of the said piece or parcel of land hereinbefore firstly conveyed, upon which the rolling mill improvements now in part stand."

The defendant pleaded non cul, on which issue was joined, and took defence according to pretensions, as they shall appear to be laid down on the return of the warrant of resurvey. At the trial the plaintiff stated his pretensions, and the defendant took defence. The question thus raised was, whether the plaintiff had truly located this third exception in the deed,  [**2]  or whether its true location is not the land for which the defendant took defence?

1st and 3rd Exceptions. The plaintiff proved by William Dawson and George Ellicott, that they knew the lines which separated the land of the granite company from that of the plaintiff, and that when the workmen were digging the foundations of the granite factory, they informed the workmen and Mr. Lansdale, the company's agent, that they were over their lines and on Carroll's land, both said witnesses having previously stated that they were not at the time of this conversation, the agents of Carroll, nor authorised by him to make such statements. To the admissibility of which evidence, as to what was said by these witnesses, to the workmen and agent, the defendant objected, which objections the court (PRICE, J.) sustained, and to these rulings the plaintiff excepted.

2nd Exception. The plaintiff, for the purpose of proving the position and character of the coke oven, asked of Evan T. Ellicott, whether he was not well acquainted with the lands described on the plats, and had not been sworn on the survey and examined as a witness to the run-out furnace, and whether he did not know from his knowledge [**3]  of the grounds and the improvements thereon, and their relation to said furnace, where the said coke oven stood, and what was its character and condition? The defendant objected to the witness being examined in relation to said oven, on the ground that he had not been examined on the survey, as to the spot where it had stood, nor had his attention been called thereto. This objection the court sustained and the plaintiff excepted.

4th Exception. (The evidence given in this exception is sufficiently stated in the opinion of this court.) Upon this evidence the plaintiff asked the court to instruct the jury, that if they find from the evidence, that the outer boundaries of the deed from the Union Bank, are truly located in the plaintiff's first location, and that the rolling mill house is truly located, and that it stands in part upon the small piece of land described in the plats and explanations as, &c., then the plaintiff is entitled to recover according to his pretensions, and in conformity with the true construction of said deed.

The defendant also asked an instruction, that if the jury find that the improvements offered in evidence were made by the owners of the rolling [**4]  mill, and were used in connection therewith, and that at the date of the deed from the Union Bank to Carroll, the said improvements stood upon the land for which the defendant has taken defence, then, by the true construction of said deed, the plaintiff is not entitled to recover.

The court rejected the plaintiff's prayer, and granted that of the defendant, and to this ruling the plaintiff excepted.

5th Exception. The plaintiff then, upon the evidence contained in the fourth exception, asked the following instructions to the jury:

2nd. If the jury find, from the evidence, the facts stated in the plaintiff's first prayer, and also that the filling up and wharfing of the ground between the margin of the stream and Carroll's eastern line, was made for the purpose of protecting the dam of the owners of mills below from injury, by the washing of ashes and cinders into the mill-pool, and when the bank was thus made, it was occasionally used by the owners of the rolling mills as a place of deposit for scrap iron and other refuse, when the mills were in operation, and that, at the date of the deed to Carroll, the use of the rolling mill was, and had been from the year 1841,  [**5]  abandoned, and the establishment as a rolling mill entirely broken up as stated in the evidence, then they are at liberty to find that the plaintiff's location of the third exception in said deed is the only true one.

3rd. If the jury believe the testimony of George Ellicott, and find therefrom that there were three mills, two of which were near to, and the other in part stood upon, a small piece of land embraced in the lines of the deed to the plaintiff, and that the upper or northern mill, alone, was called and known by the name of the rolling mill, in contradistinction to the others, and was separated from them upwards of thirty feet, and not under the same roof, and find from the evidence, that it was this rolling mill which in part stood within the lines of said deed, then, according to the true construction of the terms, "rolling mill improvements" therein used, they refer only to the improvements connected with that mill, and cannot be referred to those connected with the other two mills; that there is a distinction between one and three; and that only one rolling mill improvements are mentioned in the third exception of said deed, and that the improvements of the three [**6]  mills cannot be embraced in these terms.

4th. That it was the province of the jury, in considering the facts referred to in the defendant's prayer, and if they believe from the evidence, that at the date of said deed, the logs on the wharf had rotted away, and that the coking furnace had become a mere ruin, so as to encumber the ground with a heap of rubbish, which was not removed because it would not pay the expense thereof, and that all use of the coke furnace had ceased, because of its worthlessness and decay, ten years before said deed, and all use of the wharf had also ceased several years before said deed, then it is for the jury to say, whether they were existing improvements or not at the date of said deed, and if they find that they did not exist as improvements at the date, then the jury are not bound to find for the defendants, though they may find from the evidence that said wharf and coke oven were, in long years past, originally put there by the owners of the rolling mills, and used in connection therewith.

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

6th Exception. While the case was under argument before [**7]  the jury, the counsel for the defendant offered the following prayer, to be added as a qualification of his first prayer: That any structure made by the expenditure of labor or money, by the owners of the rolling mills, on the property in controversy, intended to make the same more useful or valuable, and actually used in connection therewith, and visible to the eye, at the date of the deed from the Union Bank to Carroll, are improvements within the true construction of said deed.

This prayer the court granted, and to this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A plaintiff in ejectment, offered to prove by a witness, who was not his agent nor authorised by him to make the statement, that he informed the defendant's agent and workmen, when digging the foundation of defendant's building, that they were over their lines and on the plaintiff's land. HELD:

That this statement being the declaration of a third party, a stranger to the controversy, and a mere volunteer, was clearly inadmissible, and if admitted could not in any manner properly affect the issues in the cause.

In an action of ejectment, a witness, though sworn on the survey, cannot prove the location of any object located on the plats, unless it appears from the plats and explanations, that he had pointed it out to the surveyor.

A court, when called on to determine the legality of a question, propounded to a witness under oral examination, must decide upon it in its entirety, and if any part of the question is illegal, the whole must be overruled.

The obligation is on the party propounding the question, to show that it is free from legal objection, and the onus does not rest either upon the court or the party objecting, to separate that part of it which may be legal from that which is illegal.

But when testimony is admitted, and an application is made to the court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion of the evidence which is illegal.

So when an offer is made, of a mass of evidence, complex in its character, and the whole of it is objected to, if any part of it is admissible, it is error to exclude the whole.

In a deed, conveying a tract of land, was this exception: "saving and excepting a small part of the said piece or parcel of land hereinbefore firstly conveyed, upon which the rolling mill improvements now in part stand." There were three separate buildings constituting one establishment, for the manufacture of iron, a rolling mill, a slitting mill and a puddling mill, and the whole together were commonly called "The Rolling Mills." HELD:

1st. That this exception is not confined to the land on which one of these buildings, the rolling mill proper, in part stood, nor to the ground actually covered by all of them, but embraces all the ground covered by any improvement connected with the whole establishment, and necessary or convenient for its use, and actually used in connection therewith.

2nd. That any structure made by the expenditure of labor or money, by the owners of the rolling mills, intended to make the same more useful or valuable, and actually used in connection therewith, and visible to the eye, at the date of the deed, is an improvement within the meaning of this exception.

3rd. That the phrase, "now in part stand," does not confine the improvements meant, to such as were erected or elevated, but, of the land conveyed, that part is within the exception, whereon any of the rolling mill improvements were, at the date of the deed, situated, or placed or remained.

The rule, that in construing deeds, they must be taken most strongly against the grantor, and in favor of the grantee, is well established, but is only to be resorted to when the words of the deed are doubtful in their meaning, or susceptible of more than one construction.  

COUNSEL:
1. Nevitt Steele and Grafton L. Dulany, for the appellant:

1st. As to the construction of the exception in the deed. The principles governing its interpretation, are 1st. That every word in it should be so construed as to have its full meaning and application, and no more. Wigram's Maxims, 10, in 2 Lib. of Law & Eq. 4 Barn. & Adol., 799, Richardson vs. Watson. 2nd. That if the language of the exception be doubtful, it ought to be construed most strongly against the grantor, and most favorably to the grantee. Even to the extent [**8]  of permitting the grantee to elect under which construction he will claim. 12 Eng. C. L. Rep., 383, Bullen vs. Denning. 2 H. & J. 112, Hall vs. Gittings. 3 Johns., 375, Jackson vs. Hudson. With these principles in view it is insisted, that this exception is confined to that small triangular piece of land within the outlines of Carroll's deed, on which the stone walls and building of the rolling mill stand now, and stood at the date of the deed. The words are, "saving and excepting a small part," that is one, not two or three small parts. Again, "on which the rolling mill" (in the singular) "improvements" stand. There were three separate structures, one called the "rolling mill," another the slitting mill, and a third the puddling mill, and the whole were collectively known as the "rolling mills," (in the plural.) When, therefore, the term "rolling mill," is used in this deed in the singular, it must mean the separate building which was known by that name, and not the three which were known as the "rolling mills." This is also more clear from the fact, that in another part of this same deed the "slitting mill" is spoken of, thus recognising a distinction between that mill and the [**9]  "rolling mill," and showing that the grantor knew the difference between the two. Again, "on which the rolling mill improvements in part stand." An improvement, therefore, to come within this description must be standing, that is, erected, elevated, existing, and used at the date of the deed. If these views are correct, it follows, that the prayers on the part of the plaintiff should have been granted, and those of the defendant rejected.

2nd. The witness, Ellicott, who was sworn and examined on the survey, though not then examined as to the coke oven, was competent to prove its location, or was, at least, competent to prove its character and condition. 5 Md. 260, 280, Armstrong vs. Risteau. Dorsey on Ejectments, 62. 1 H. & G., 443, Wall vs. Forbes. If any part of the testimony was admissible, it was error to reject the whole. 3 Gill 220, Budd vs. Brooke. 7 Md. 582, Pegg vs. Warford.

3rd. It is also insisted, that the evidence offered in the first and third exceptions ought to have been admitted.

John Prentiss Poe and Geo. W. Dobbin, for the appellee:

1st. This action is to recover a small piece of land, of no great importance to the plaintiff but of [**10]  vast moment to the defendant; for if the plaintiff's construction of the exception in this deed is sustained, it will compel the company to take down the wall of a large stone factory, which they have recently built, and cripple, if not entirely break up their establishment. What then is the meaning of this exception? The intent of parties is the cardinal rule in the construction of this, as of all other written instruments. This reservation was undoubtedly made for the benefit of the Granite Manufacturing Company. It excepts from the grant previously made "a small part." "A part" means less than the whole, and does not always imply singularity. As for instance: "I give my son a part of my estate," which may consist of several parcels, and such a gift of "a part" can mean nothing more than less than the whole, and would be a part of each of the several parcels of which the estate consisted. But again, this part is to contain "improvements," more than one of course. The several mills all constituted one establishment, known as the "rolling mills," and the exception is of that part on which the "rolling mill improvements,' that is, the improvements used in connection with the entire [**11]  establishment. The word, "improvements," must be stricken out, if the construction on the other side is to prevail. By the conveyance of a "mill," not only the land on which the building stands, but that adjacent thereto, so far as necessary to its use, and commonly used with it, will pass by implication, and the same rule prevails in construing an exception in a grant. 13 Metcalf, 114, Forbush vs. Lombard. See also 2 Greenleaf's Cruise, 265, and note. 1 Sumner, 500, United States vs. Appleton. 15 Maine, 218, Maddox vs. Goddard. 16 Maine, 63, Moore vs. Fletcher. We insist, therefore, that the true construction of this exception is that embodied in the prayers which were granted by the court below.

2nd. The testimony of Dawson and Ellicott, set out in the first and third exceptions, was clearly inadmissible, because it was irrelevant. The fact that these witnesses made such statements to the workmen, could not alter the rights of the parties as they stood, upon the true construction of this deed.

3rd. The testimony of Ellicott in the second exception, as to the location of the coke oven, was properly excluded, as he was not examined, nor had his attention been drawn to it [**12]  on the ground, and its precise location constituted one of the main points in controversy. 8 Gill 98, Mitchell vs. Mitchell. 1 H. & G., 444, Wall vs. Forbes.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*407]  BARTOL, J., delivered the opinion of this court.
The record in this case presents for our consideration two questions of evidence; these form the subject of the first, second, and third bills of exceptions.
In the first and third exceptions, the plaintiff offered to prove by William Dawson and by George Ellicott, that when the foundations of the granite factory were being dug, they informed Lansdale, the agent of the manufacturing company, and the workmen engaged in digging, that they were over their lines and on Mr. Carroll's land; both the witnesses stated that they were not Carroll's agents, nor authorised by him to make such statement.
In our opinion this evidence was properly rejected by the court. It was the declarations of third parties, strangers to the matter, and mere volunteers; and the evidence, if admitted, could not in any manner properly affect the issues in the cause, and was therefore properly rejected [**13]  as irrelevant.
The second exception is taken to the ruling of the circuit court, in sustaining the defendants' objection to a question propounded by the plaintiff to the witness, Evan T. Ellicott. The witness was called upon to state "where the coke oven stood, and what was its character and condition?" He was clearly incompetent to prove the location of the "coke oven," because it does not appear from the plats and explanations, that he had pointed out to the surveyor the object located, as to which he was called to testify." Mitchell vs. Mitchell, 8 Gill 98. See Dorsey on Ejectment, 62.
But it is contended by the appellant, that it was competent for the witness to testify as to the character and condition of the coke oven, and that a part of the question being legal, it was error to sustain the objection.
In Whiteford vs. Burckmyer & Adams, 1 Gill 127, the court say: "Nor do we think, where a question is proposed 

 [*408]  to be asked of a witness, which involves several distinct members, the court is bound to select from it such members as might be admissible, if unaccompanied by others with which it is connected, and say that [**14]  such particular portions of the testimony are proper."
We concur in that opinion, and think that the court, when called on to determine the legality of a question propounded to a witness under oral examination, must decide upon it in its entirety. The obligation rests upon the counsel propounding the question, to show that it is free from legal objection, and the onus does not rest either upon the court or the party objecting, to separate that part of it which may be legal from that which is illegal.
After evidence has been admitted, and an application is made to the court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion of the evidence which is illegal. And the same rule applies when an offer is made of a mass of evidence, complex in its character, and the whole of it is objected to. In such case, if any part of it be admissible, it is error to exclude the whole. This principle is established by the case of Budd vs. Brooke, 3 Gill 198. See Waters vs. Dashiell, 1 Md. 455.
Without expressing any opinion, therefore, as to the legality of any part of the question propounded [**15]  to the witness, it is sufficient for the purposes of the exception to say, that a part of it being illegal, it was properly overruled by the circuit court.
This brings us to the questions raised by the prayers, and presented in the 4th, 5th and 6th bills of exceptions. These involve the construction of the third exception, or reservation in the deed under which the plaintiff claims, which is in these words: "Thirdly, saving and excepting a small part of the said piece or parcel of land hereinbefore firstly conveyed, upon which the rolling mill improvements now in part stand."
It is a concession in the cause, and the proof shows, that the piece of land in dispute is embraced within the lines of the property conveyed to the plaintiff, and unless it is covered by the exception, the plaintiff is entitled to recover.

 [*409]  The land excepted is "a small part" (of the piece or parcel firstly conveyed,) "upon which the rolling mill improvements now in part stand." There is evidence in the cause that there were three mills, which were separate structures standing several feet apart, the most northern of these was the rolling mill proper, in which alone the rolling of iron was [**16]  performed, the others were the puddling mill and the slitting mill, and the whole together were commonly called The Rolling Mills.
The rolling mill proper, stood in part upon the land covered by the plaintiff's deed, on the small triangular piece designated on the plat by the letters A B C. This piece of ground is conceded by the plaintiff to be within the exception, and on his part it is contended, that by the true construction of the clause, its intent is thereby fully gratified, and that the defendant cannot claim any other piece as within the exception; First, because only one piece is excepted; and secondly, because the exception is confined to the part, whereon the building itself, called the rolling mill was erected. Neither of these positions is sound. The exception is not of one piece of ground, but it is of a part of what had before been conveyed; and if it be shown by the evidence, that the rolling mill improvements in fact, stood in part on several distinct and separate pieces of the land firstly conveyed, then each piece would be fairly within the exception.
The term, "a part," has reference to quantity, as less than the whole, and properly construed, is not [**17]  to be taken as meaning necessarily that the part excepted is in one piece or parcel. This is the usual and ordinary signification of the word; as when we say a part of Maryland is sandy, we are not to be understood as meaning that the sandy portion is to be found in one integral piece or parcel of the State's surface.
Nor is the exception to be confined to the ground actually occupied by the building, which was the rolling mill proper. The words are, "rolling mill improvements;" though the three mills were separate structures, there is evidence showing that they were all under the same management, had the same payroll, and were used in performing different parts of the same 

 [*410]  process. The slitting mill and puddling mill prepared the iron for the rolling mill. "The iron went into one end of the establishment crude, and was carried through the various stages of manufacture through the others, before it was turned out as the completed article," and the whole was commonly known as "The Rolling Mills." Nor do we think that the true construction of the clause in question, confines its limits to the ground actually occupied or covered by the buildings called the Rolling Mills. [**18]  It is more extensive, and embraces all the ground covered by any improvement connected with the rolling mills, and necessary or convenient for their use, and actually used in connexion therewith. This might embrace not only the three mills, but also the coke furnace and wharf, with the intervening ground, if the evidence showed them to be rolling mill improvements in the sense in which we have described.
It seems to us, that no more correct exposition of the law governing the construction of the clause in the deed could be given, than is found in the instructions given to the jury by the circuit court, and stated in the fourth and sixth bills of exceptions, they were as follows:
"If the jury find the facts stated in the agreement of counsel, and that the improvements offered in evidence were made by the owners of The Rolling Mills, and were used in connection therewith, and that at the date of the deed from the Union Bank to Carroll, the said improvements stood upon the land for which the defendant has taken defence, then, by the true construction of said deed, the plaintiff is not entitled to recover." "And that any structure made by the expenditure of labor or money by the owners [**19]  of The Rolling Mills, on the property in controversy, intended to make the same more useful or valuable, and actually used in connection therewith, and visible to the eye at the date of the deed from the Union Bank to Carroll, are improvements within the true construction of said deed."
The principle announced in these instructions is sustained by an unbroken current of authorities.
See Whitney vs. Olney & others, 3 Mason 280. In 

 [*411]  13 Metcalf 114, the court say: "The rule of construction is well established, that by the grant of a mill, the land under the mill and adjacent thereto, so far as necessary to its use and commonly used with it, will pass by implication. And the same rule of construction applies to an exception in a grant." See also 15 Maine, 218. 16 Me. 63. 3 N.H. 190.
The views we have expressed are not in conflict with the rule of law, that, in the construction of deeds, they must be taken most strongly against the grantor, and in favor of the grantee.
This principle has been invoked by the appellant in support of his construction, and there is certainly no one better established. But that rule [**20]  is only to be resorted to, when the words of the deed are doubtful in their meaning, or susceptible of more than one construction. In this case, we consider the words of the exception in the deed are free from uncertainty, and admit of but one interpretation. One more objection urged by the appellant in the argument remains to be considered. It is contended, that no improvements are meant by the deed, except such as were erected or elevated, and that it does not refer to such as had been abandoned, and were fallen into dilapidation and decay, or which were merely spread upon the surface for the purpose of filling up the wharf, or making the yard and ground, adjacent to the mills, more fit for the use and convenience of their occupiers. This argument is based upon the use of the words, "now stand," in the deed. To our minds the argument appears more ingenious than solid. The word standing, often signifies placed or situated; thus we say London stands on the Thames. And, in the clause before us, such we consider to be its true meaning. Of the land conveyed, that part is within the exception, whereon any of the rolling mill improvements then were situated, or placed, or remained.  [**21]  
What has been said, dispenses with the necessity of a more particular notice of the several prayers offered by the plaintiff below. We concur in the propriety of their rejection by the circuit court.
Judgment affirmed.
ECCLESTON, J., dissented.  

42 of 47 DOCUMENTS 

LEWIS UHL vs. PETER DILLON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 500; 1857 Md. LEXIS 14 

JUNE, 1857, Decided 

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

This is an appeal from an order granting an injunction and appointing a receiver, upon a bill filed by the appellees against the appellant.

The bill alleges, that the defendant is indebted to the complainants in the sum of $ 3695.56; that he is engaged in the pork and provision business, and has purchased a large amount of stock from the complainants and others, payments for a large portion of which are now actually due and unpaid; that he is now engaged in disposing of said stock, and has already sold his real estate and received the money therefor, and is also collecting the debts due him and secreting the same, with intent to defraud the complainant and his other creditors; that complainants are informed, and verily believe, that as soon as he is able to complete the sales and collect said debts, he intends to abscond to parts unknown, for the purpose of hindering, delaying and defrauding his creditors of their just claims, and to prevent the recovery thereof. The bill then prays for the appointment of a receiver, and for an injunction restraining him from selling or disposing of his property, or collecting [**2]  the debts due him, and that his effects may be applied to the claims of the complainants and his other creditors, and for general relief.

Upon this bill the court, (PRICE, J.,) appointed the receiver and granted the injunction as prayed, from which order the defendant, after answer filed, appealed.  

DISPOSITION:
Order reversed and bill dismissed with costs.  

HEADNOTES:

A bill simply alleging that the defendant is indebted to the complainants in a specified sum, and that he is disposing of his property and collecting the debts due him, and secreting the same, with intent to defraud his creditors, and that he intends, as soon as he completes such sales and collections, to abscond, for the purpose of hindering, delaying and defrauding his creditors, does not warrant the appointment of a receiver, or an injunction restraining him from disposing of his property.

It is for the Legislature to correct the defects, if any, in existing laws, leaving to the debtor the absolute power of disposing of his property, and it is not within the province of courts of equity to stretch their power beyond the limits of the authorities of the law for the purpose of remedying such defects.  

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

1st. To sanction either injunction or receivership on a case as presented in this bill, will be to institute the vaguest and wildest basis of judicial control, a judicial system of bankruptcy, and a censorship over the citizen's disposing power of his property, which may just as well and reasonably be used, (in a course of sumptuary provision with a view to creditor's rights,) to regulate a debtor's personal and family expenses, and, under that judicial discipline, to deprive the debtor and his family of the means of subsistence, lest, by want of due economy, creditors may eventually suffer. Equity follows the law; and is not, by assuming a legislative power, to provide remedies for excesses (as one, for instance, of the jus disponendi) not provided for by the law,  [**3]  and not provided for just because the case, or evil, being necessarily incident to the matter of higher consideration, the inviolable right of property, the sanctity of that right forbids interference.

2nd. An injunction in such a case as this is not within the spirit of the act of 1835, ch. 380, sec. 2; for that provision was meant only to allow a creditor, without having a preliminary judgment under which he might lay execution on the particular property, to impeach any conveyance, or other specific act, of a debtor fraudulently disposing of specific property; and the creditor's proceeding there is, of course, aimed at the debtor's alienee and his coadjutor in the fraud, and not, as here, at the debtor's legitimate disposition of property--legitimate so far as the vendees or third parties are concerned. Nor is this case one of contemplated evasion of the insolvent laws, to defeat which the injunction was issued in the case of Albert & Wife, vs. Winn & Ross, 7 Gill, 446; although the right to issue even that injunction is very doubtful, and has never been affirmed, nor in that case discussed, because not coming into question in the Court of Appeals. That injunction was granted [**4]  by Chancellor Bland, whose views as to the rights of creditors to interpose in cases of merely actual, not technical, insolvency, were peculiar, and have been denied by the Court of Appeals. See 2 Johns. Ch. Rep., 144, Wiggins, et al., vs. Armstrong, et al.

3rd. This case is founded on the unexplained "belief," (whether even inference from facts or faith in rumor, does not appear,) and on an allegation of undefined "secreting," (whether secreting by putting in the debtor's pocket, or in his safety closet, or depositing it but guardedly from others out of sight, and beyond access and spoliation, does not appear.) Can an injunction on such a basis of vague assertion, or effectively of mere opinion, little better than conjecture, be justified? and ought not the facts on which the "belief" is grounded, or the transactions and devices specifically which define and characterise the "secreting," to be set out in the bill? So says the decision in the case of Warfield vs. Owens, 4 Gill, 382, as we interpret it.

Jas. Malcolm and St. Geo. W. Teackle for the appellees, argued: That it is upon the bill the cause is to be tried, without reference to the answer, the appeal having been taken [**5]  from the orders granting the injunction and appointing the receiver, and that the court below was right in such action, upon the allegations and averments in the bill. 7 Gill, 446, Albert & Wife, vs. Winn & Ross.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*503]  BARTOL, J., delivered the opinion of this court.
The bill, filed by the appellees in this cause, states no sufficient case entitling them to the relief prayed.
No authority has been shown to this court, nor can any be produced, entitled to consideration, which sanctions the exercise of the high and extraordinary power of a court of chancery, to interpose, by writ of injunction, in a case like the one before us, restraining a debtor in the enjoyment and power of disposition of his property.
The appellees, (the complainants below,) are merely general creditors of the appellant, who have not prosecuted their claim to judgment and execution, nor in any other manner acquired a lien upon the debtor's property, and were not entitled to the writ of injunction nor to the appointment of a receiver.
Whatever may be the supposed defects of the existing laws of the State, in [**6]  leaving to the debtor the absolute power of disposing of his property, and leaving the creditor to the slow and very inadequate legal remedies now provided, if such defects exist, it is solely in the power of the Legislature to correct them. It is not within the province of the chancery courts to stretch their power beyond the limits of the authorities of the law, for the purpose of remedying such defects.
Such a course would be productive of great mischief, and make the rights of the citizen depend upon the vague and uncertain discretion of the judges, instead of the safe and well defined rules of law.
The learned Chancellor Kent, in the decision of the case of Wiggins & others, vs. Armstrong & others, 2 Johns. Ch. Rep. 144, has stated, most clearly and forcibly, the principles which govern the case before us, and we adopt its reasoning as applicable here. See the authorities referred to by the chancellor in his opinion in the case cited. See, also, 1 Paige 168. Adams' Equity, 487.
We reverse the order of the circuit court granting the injunction and appointing a receiver, and dismiss the bill, with costs.
Order reversed and bill dismissed  [**7]   with costs. 

43 of 47 DOCUMENTS 

JOHN JOHNS vs. JAMES REARDON and Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 465; 1857 Md. LEXIS 56 

DECEMBER, 1857, Decided 

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

The record in this case shows, that on the 25th of April 1839, Reardon and wife executed a mortgage of certain land, lying in Harford county, to Johns, to secure $ 2000 lent to Reardon. The grantors lived in Harford county, and the mortgage was acknowledged before two justices of the peace of the city of Baltimore, and recorded in Harford county. On the 8th of December 1841, Reardon and wife gave a mortgage to Scott upon this same land and other land, to secure $ 5000, also due by Reardon. This mortgage was duly executed, acknowledged and recorded.

A bill was filed in chancery by Johns, against Reardon alone, to foreclose his mortgage, and Reardon, in his answer thereto, states that the property belonged partly to himself and in part to his wife, and prays that she may be made a party to the bill. Scott then filed his bill against Reardon and wife, and Johns, to foreclose his mortgage, and claiming a priority for it over that to Johns. The causes were then consolidated by an agreement, in which it was also admitted that the land described in both mortgages belonged, at the time of their execution, one-half [**2]  to Mrs. Reardon in fee, and the other half to Reardon in fee. The chancellor then, by his opinion and decree, gave Scott's mortgage the priority, because that to Johns had not been acknowledged before two justices of the peace of the county where the land was situated, or the grantors lived, and decreed a sale of the mortgaged premises first to pay Scott's mortgage, and with the reservation of John's right against the surplus, after the defect of his bill, in not making the wife a party, was remedied by amendment or agreement.  (3 Md. Ch. Dec., 57, 65.) Johns appealed from this decree, and it was affirmed by this court, (5 Md. 81,) and the cause remanded to the circuit court for Harford county for further proceedings.

The whole mortgaged property was then sold by the trustee, and the net proceeds, amounting to $ 11,195.61, applied to pay Scott's mortgage of $ 8225, leaving a surplus of $ 2968.61, which was claimed by Mrs. Reardon, by her petition filed in the case, and also by Johns, in exceptions filed by him to the auditor's account, awarding it to Mrs. Reardon. The second of these exceptions insists, that as Scott's mortgage was valid against the entire interest both of [**3]  Reardon and his wife, whilst the exceptant's is alleged to be only valid as to Reardon's interest, therefore Mrs. Reardon's part should have been applied entire to the payment, in part, of Scott's mortgage, and then so much of Reardon's interest as was necessary to pay the balance thereof, and the residue of Reardon's portion to the payment, in part, of exceptant's mortgage.

The court (HENRY W. ARCHER, Special Judge,) by agreement, under which the right of appeal was reserved, passed a pro forma order overruling the exceptions and ratifying the account awarding the surplus to Mrs. Reardon, and from this order Johns appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Husband and wife executed a mortgage of real estate belonging, one moiety to the wife in fee, and the other moiety to the husband in fee, but this mortgage was not properly acknowledged. Subsequently the same parties executed a mortgage of the same land to another party, which, being duly acknowledged, was decided to have priority over the former, and both were to secure debts due by the husband. HELD:

That the surplus proceeds of the sale of this property, after payment of the mortgage having priority, and which more than exhausted the husband's interest therein, belongs to the wife, and the other mortgagee has no right to ask that her interest be applied to pay the mortgage having priority, so as to leave the husband's interest applicable to his mortgage.

A feme covert can be divested of her estate at law, in no other mode than by a deed executed and acknowledged according to the acts of Assembly on that subject, and a deed not so acknowledged, is wholly inoperative as to her, and is to be treated as if she had not been a party to it.

A wife who joins her husband in a mortgage of real estate, partly her own, and partly her husband's, to secure a debt due by the husband, stands as surety of her husband to the mortgagee, and has the right to have the husband's interest first applied to pay the debt, in exoneration of her interest.

Where there is a lien on two different parcels of land, and a junior lien on one of them only, and the holder of the elder claim elects to have his whole demand out of the land bound by the junior creditor, the latter may have the prior creditor thrown upon the other fund, or have the prior lien assigned to him.

But this rule does not apply where there are two mortgagors of distinct estates (one being surety for the other) for the payment of the same debt, and a subsequent mortgagee has a lien only on the estate of the principal in the first debt.  

COUNSEL:
Chas. H. Pitts for the appellant:

Though the mortgage from Reardon and wife to Johns, was not valid as to Scott, a subsequent bona fide purchaser without notice, it is valid as between the parties thereto, including the wife. The only ground upon which Scott became a prior incumbrancer, was because he was ignorant of the mortgage to Johns; but Mrs. Reardon did have actual notice of this mortgage at the time she executed the subsequent mortgage to Scott. It is admitted that this mortgage did not pass her dower interest [**4]  in the land, but that is not the question in this case; it is not as wife that she claims, but as creditor, and claiming as such, the assets must be marshalled. In other words, inasmuch as Scott's mortgage is valid against the entire interest of Reardon and wife, and Johns' mortgage is valid only against Reardon's interest, the whole of Mrs. Reardon's interest should have been applied to Scott's mortgage, and then so much of Reardon's interest as was necessary to pay the balance of Scott's claim, leaving the residue of Reardon's interest to be applied to Johns' mortgage, after deducting Mrs. Reardon's dower, to be ascertained under the rule of court. 1 G. & J. 346, 353, Union Bank vs. Edwards. 2 Bland, 166, Winder vs. Diffenderffer. Ibid., 509, Watkins vs. Worthington. 6 Gill 337, 338, Cornish vs. Wilson. 9 Gill 185, Woollen vs. Hillen.

Thos. S. Alexander for the appellee, argued:

1st. That as by the former decision of the chancellor, affirmed in this court, the right of Johns to come in on the surplus proceeds, was reserved until the defect in his bill was cured by making Mrs. Reardon a party, and as since the remanding of the case, he has never made her a party,  [**5]  and has never obtained any decree even against the husband, he is not entitled to make any claim to this surplus, especially not against the wife, the sole owner thereof. 8 Md. 1, Eyler & Matthews vs. Crabb's Exc'r. 7 Gill 333, McClellan vs. Crook. 1 Johns. Ch. Rep., 189, Gelston vs. Codwise. Jacob., 487.

2nd. That Johns is not entitled to claim any interest of Mrs. Reardon in the property or its proceeds, by virtue of his mortgage, because she was never made a party to his bill, and also, because even if she had been, the mortgage, not having been duly acknowledged, was, as to her, a nullity. And as the payment of Scott's mortgage not only exhausted the whole of the husband's interest in the property, but also at least half that of the wife, the surplus unquestionably was of her interest in the estate, and Johns, therefore, could have no possible claim to it under his mortgage. 3 Gill 329, 334, Chaney vs. Tipton. 6 Wend., 1, 13. 5 Madd. Ch. Rep., 414.

3rd. That as Johns never claimed the alleged equity of having the funds marshalled set up by his second exception, either in his answer to Scott's bill, or in any other manner than by filing that exception, and [**6]  as Mrs. Reardon never was a party to his bill, nor even any decree obtained upon it, he could not then claim any such equity, and even if still open to him, not by mere exception to the audit. But even if properly claimed and in proper time, Johns, as mortgagee only of the husband, has no such equity as against Scott, the mortgagee of both husband and wife, and especially not as against Mrs. Reardon, who, as mortgagor of her estate to Scott, for her husband's debt, instead of being liable in equity to have her estate primarily exhausted for the payment of that debt, has a counter equity to have the husband's estate first applied, or to be substituted to Scott's rights, to the extent to which her estate was exhausted in the payment. 4 Johns. Ch. Rep., 17, Dorr vs. Shaw. 1 Story's Eq., secs. 634, 642, 643. 71 Law Lib., 192, 197, 198. 9 Gill 186, Wollen vs. Hillen. 2 Sumner, 105, 125, Dexter vs. Arnold. 2 Story's Eq., sec. 1373. 2 Atk., 384, Parteriche vs. Powlet. 3 Paige, 615, Neimcewicz vs. Gahn.  

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

OPINIONBY:
TUCK 

OPINION:

 [*469]  TUCK, J., delivered the opinion of this court.
The property of Mrs. Reardon, conveyed [**7]  to Johns, was not her separate estate, which she could bind in equity, but her estate at law, of which she could not be divested, except in the mode prescribed by our acts of Assembly, to pass the real estate of a feme covert. Chaney vs. Tipton, 3 Gill 327. As that deed was not acknowledged according to law, it was wholly inoperative as to her, and must be dealt with as if she had not been a party to it; and then the parties stand in this predicament, Johns held a mortgage of the property as if executed by James Reardon alone, and Scott a mortgage on the same property, executed in due form of law by Reardon and wife; this latter deed, according to the previous decision in this case, having priority over the other. In this aspect, Mrs. Reardon stands as surety to Scott, under a mortgage of her property, for a debt of her husband, but she never made a 

 [*470]  valid deed binding her property for the payment of his debt to Johns. The proceeds of sale of both estates being in court, and Scott's priority acknowledged, the appellant claims payment of his claim out of the residue, as far as it will go, while Mrs. Reardon insists, that he has no right which a court [**8]  of equity will sanction as against her.
The argument on the part of the appellant, that Mrs. Reardon having executed the mortgage to Scott with knowledge of the deed to Johns for the same property, must be bound as a creditor or incumbrancer with notice of a prior equity, would, if allowed, defeat the object and policy of the law in relation to the estates of married women, by treating them sui juris. The Legislature has provided how they may dispose of their real estates, and the court has said they can be affected in no other mode.  3 Gill 327.
It is a familiar principle, that "where there is a lien on two different parcels of land, and a junior lien on one of these parcels only, and the party holding the elder claim elects to have his whole demand out of the land bound by the lien of the junior creditor, the latter may either have the prior creditor thrown upon the other fund, or have the prior lien assigned to him, and receive all the aid it can afford him." Watson vs. Bane, 7 Md. 117. But that rule does not apply where there are two mortgagors of distinct estates--one being surety for the other--for the payment of the same debt, and a [**9]  subsequent mortgagee has a lien only on the estate of the principal in the first debt. This was decided in Woollen vs. Hillen, 9 Gill 185, which case appears to be applicable to the present, if we consider Scott as the prior incumbrancer of both estates, and Johns as mortgagee of Reardon's property only. It was the equity of Mrs. Reardon, as of any other surety, to have her principal's estate applied, first to the payment of that debt for which her's stood as security, before the subsequent mortgagee of his estate could come upon the fund. To decide otherwise, would be making the appellee pay a debt of her husband, for which her property was never bound. If Reardon had mortgaged two farms to Scott, and one of them, afterwards, to Johns, the principle invoked in behalf of the appellant, 

 [*471]  would have been applicable; but, as this case appears upon the record, he can derive no benefit from it.
With our view of this point, it is unnecessary to decide the others presented on the part of the appellee.
Order affirmed, with costs. 

44 of 47 DOCUMENTS 

JOHNS HOPKINS vs. WILLIAM BOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 107; 1857 Md. LEXIS 27 

DECEMBER, 1857, Decided 

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

Assumpsit brought by the appellant, as endorsee, against the appellee and William Rogers, partners, trading under the firm name of "Rogers & Boyd," as makers of the four several promissory notes mentioned in the opinion of this court. The declaration also contained an insimul computassent count, and the common money counts. The defendants severed in their pleas, each pleading non assumpsit.

Exception. The plaintiff having given notice at the bar, during the trial, to produce the note for $ 364.26, dated the 24th of May 1851, proved, by Bowerman, that before the 27th of November 1851, the plaintiff discounted, for value, that note which was signed "Rogers & Boyd," payable, at six months, to the order of Simms, by whom it was endorsed, before reaching the hands of the plaintiff; that it was placed in the Merchants Bank for collection, and upon its maturity, on the 27th of November 1851, was protested for non-payment, and a day or two thereafter, witness, as clerk of the plaintiff, took it from the bank to the plaintiff's counting room, and on the 31st of December 1851, plaintiff instructed witness to take for it three others, at two, four [**2]  and six months, and witness accordingly drew three notes of that date, and took them, together with the original note, by direction of the plaintiff, to the place of business of Rogers & Boyd, to get them executed in renewal of said original note, and they were there signed by Rogers, in the name of the firm; that the plaintiff did not tell witness specially to see Rogers only, witness understood that the renewed notes were to be signed as the old one was, in the firm name, and if he had seen Boyd there, he would have applied to either; that Simms, to whose order these renewed notes were drawn, was not there to endorse them, and witness brought all four of the notes to plaintiff's counting-room, where Simms, in a day or two afterwards, called and endorsed the renewals, and witness either delivered the original note to him, or took it to the store of Rogers & Boyd and surrendered it. On cross-examination, this witness proved that Boyd was not at the store of the firm when witness went there, and that Rogers was not with Simms when the latter came to endorse the renewal notes, and that witness did not hear a conversation between Rogers, Simms and the plaintiff, which he knows took place [**3]  in the plaintiff's counting-room on the morning of the 31st of December 1851, before the plaintiff gave witness the above directions in regard to the renewal notes.

The defendant, Boyd, then proved by Simms, that Rogers called on witness, on the 31st of December 1851, to go with him to the counting-room of the plaintiff, to try and get the note for $ 364.26, which witness had endorsed, renewed; that he accordingly went, and Rogers and himself there saw and conversed with the plaintiff; that there was a good deal of conversation between the three, Rogers doing the most of it, as he was most interested; that Rogers then and there stated to the plaintiff, that the note for $ 364.26 had been given without his co-partner's (Boyd's) knowledge, and was not for a partnership transaction, and that he, Rogers, wished the plaintiff to take three notes, which Rogers promised to pay; that plaintiff said, in reply, it was a matter of indifference to him whether Rogers' partner knew of the note or not. This witness further proved the signature of the firm name to the three notes of December 31st, to be in Rogers' handwriting, and that Rogers mostly signed the notes of the firm; that a day or [**4]  two after the above conversation, witness, at the instance of Rogers, called at the plaintiff's counting-room, and endorsed the three renewal notes; that witness thinks the original note was an accommodation note to some party, and the signature of the firm name to it was made by Rogers, and that this original note was not surrendered to him when he endorsed the renewals. On cross-examination, this witness proved that plaintiff said to himself and Rogers, when told by the latter that the $ 364.26 note had been given without the partner, Boyd's knowledge: "Well, what is that to me, I gave value for it in the course of my business, and took it on the faith of the co-partnership name, and with no notice that it had been given without Boyd's knowledge or assent, and not for a partnership transaction;" that these may not have been his exact words, but the plaintiff spoke to that effect; that after these remarks, it was agreed that the three notes, dated the 31st of December, should be given as they now are. The defendant further proved by another witness, Sutton, that he knows that the $ 364.26 note was not given for the partnership business of Rogers & Boyd, but as an accommodation note [**5]  for witness. The plaintiff then asked two instructions to the jury, in substance as follows:

1st. That if the jury find, from the evidence, that the plaintiff discounted for value, before its maturity, the note for $ 364.26, which had been made by Rogers, in the name of the firm of Rogers & Boyd, he being a partner with Boyd in said firm, payable to the order of William Simms, and by him endorsed, and that Rogers mostly signed the notes of said firm, and that plaintiff took said note without notice that it had not been given for a partnership transaction, and without notice that it had been given without Boyd's assent, and that said note matured on the 27th of November 1851, that then said note was binding on the firm of Rogers & Boyd, in favor of the plaintiff, though given originally without the assent or knowledge of Boyd, if the jury find the other facts which may be assumed in this prayer.

2nd. If the jury find the facts stated and assumed in the first prayer, and that the note for $ 364.26 was duly presented for payment, and protested for non-payment, and that on or about the 31st of December 1851, Rogers, in company with the endorser, Simms, went to the counting-house [**6]  of the plaintiff to get said note renewed, and that then Rogers told the plaintiff that said note had been given without Boyd's knowledge or assent, and not for a partnership transaction, and that then plaintiff stated substantially to Rogers and Simms, that this fact was a matter of indifference to him, as he had taken the note, without notice of such fact, in the course of his business, on the faith of the co-partnership, for value, and before its maturity, and that forthwith, after these remarks of the plaintiff, it was agreed that the three notes given in evidence, bearing date on the 31st of December 1851, should be made in the name of the firm of Rogers & Boyd, and that accordingly the plaintiff instructed the witness, Bowerman, to take said note for $ 364.26 to the store of Rogers & Boyd, on that day, and get the agreed renewal in the name of the firm of Rogers & Boyd, and that Bowerman did take said note to said store, and also the said notes dated the 31st of December 1851, which were then signed by Rogers, in the name of the firm of Rogers & Boyd, payable to the order of Simms, and that Bowerman brought all four of the notes to the counting-room of the plaintiff, and that [**7]  in a day or so afterwards, Simms came there and endorsed those dated the 31st of December 1851, and that then said note for $ 364.26 was carried by Bowerman to the store of Rogers & Boyd, and surrendered; and if the jury find all other facts assumed in this prayer, then the plaintiff is entitled to recover.

The defendant, Boyd, then asked two instructions to the jury, in substance as follows:

1st. That if the jury find, from the evidence, that the note spoken of by Bowerman, as becoming due on the 27th of November 1851, was given by Rogers, without the knowledge of Boyd, in the partnership name of Rogers & Boyd, and that said note was not made or negotiated for the use of the partnership, or for any matter springing out of, or connected with, the business of said partnership, and that before giving the three notes, dated the 31st of December 1851, the plaintiff had express notice of these facts; and that the plaintiff, on the 31st of December 1851, was requested by Rogers to accept and receive the three notes of that date in payment of said former note, which became due on the 27th of November 1851, and that plaintiff, assenting to such request, did agree with Rogers to accept [**8]  said three notes in payment and extinguishment of the said note which so became due, and that the plaintiff, before receiving said three notes, had notice that Rogers designed to conceal from the knowledge of Boyd that the said note which had so became due, had been given by him, Rogers, and also to conceal from the knowledge of Boyd the fact that said three notes were intended to be given by him, Rogers, in payment and extinguishment of said former note, and that the plaintiff did not carry notice of these several facts, or of any of them, to Boyd, then the plaintiff is not entitled to recover the amount of said three notes, as against Boyd, on the issue joined on his plea.

2nd. If the jury find that the note spoken of by Bowerman as a note which became due on the 27th of November, was executed by Rogers in fraud of the partnership of Rogers & Boyd, and without the knowledge of Boyd, and that before the execution of the three notes, dated 31st of December 1851, the plaintiff had notice of such fraud on the part of Rogers, and of such want of knowledge on the part of Boyd, and that said three notes were executed and delivered by Rogers to the plaintiff, without the knowledge or [**9]  assent of Boyd, then the plaintiff is not entitled to recover on said three notes, as against Boyd, on the issue joined on his plea.

The court (MARSHALL, J.,) granted the plaintiff's first prayer, but refused his second, and granted both of the defendant's prayers, to which refusal, and the granting of the defendant's prayers, the plaintiff excepted.

On the issue joined between the plaintiff and Rogers, the verdict and judgment were in favor of the plaintiff, but upon the issue joined between the plaintiff and Boyd, the verdict and judgment were in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

A promissory note, signed in the firm name by one of two partners, was received by the plaintiff before maturity, in due course of business, without notice that it was not given for a partnership transaction, and without the assent of the other partner. At maturity the note was protested, and the plaintiff took therefor three notes in renewal, signed by the same partner, in the firm name. At the time these renewals were given, the plaintiff had notice that the original note was given without the co-partner's knowledge, and not for a partnership transaction. HELD:

That the plaintiff could recover on the renewals; he took a good title when he obtained the original note, and to deny the right of the partner who signed the firm name to it, to renew it, during the existence of the partnership, would be to render such title valueless.

After dissolution, one partner cannot bind his late partner by a new contract, even when the consideration is a debt of the firm, but during the existence of the partnership, he can bind his co-partner by signing the name of the firm to negotiable paper. 

COUNSEL:
William H. Norris for the appellant, argued:

1st. That the plaintiff's second prayer should have been granted, 1st. Because there is no evidence in the cause inconsistent with the hypothesis of this prayer; and 2nd. Because if the facts of the prayer had been found by the jury the plaintiff was entitled to recover. A party holding a valid security in his hands is not prevented from taking a renewal of it by the knowledge that it would not have been valid to him had the facts connected with its issue been known to him when [**10]  he received it, and especially when no party in interest is prejudiced by the renewal. As respects him it is a valid security. And if, from any technical reason, the plaintiff could not have recovered on the renewals, he was at liberty, under the circumstances, to recover on the original $ 364.26 note, as deceptively obtained from the plaintiff, or he could have recovered on the common counts, as there was no evidence that notes not valid as partnership obligations had been agreed to be taken in renewal by the plaintiff. 3 G. & J. 450, Bosley vs. Ches. Insurance Company. 7 H. & J. 295, Riggin vs. Patapsco Ins. Co. 11 G. & J. 13, Moale vs. Hollins. 2 Gill 133, Tiffany vs. Savage. 4 Do., 421, Stockton vs. Frey. 4 Md. 288, Thruston vs. Lloyd. 6 Do., 151, Key vs. Dent, Adm'r of Wood. 7 Do., 366, McTavish vs. Carroll. Collier on Part., secs. 494, 447, 492, 195, 384, 386. Chitty on Bills, 265, 125, (note s,) 180. 2 G. & J. 494, Glenn vs. Smith. 6 Do., 71, Crawford vs. Berry. 3 Do., 374, Penn vs. Flack & Cooley. 2 H. & G., 274, Neal vs. Fisher. 7 H. & J. 35, Bowers vs. The State, use of Dryden. 7 G. & J. 474, Lancaster vs. Baltzell. 5 Gill 436, Larrabee [**11]  vs. Talbott. 7 Do., 65, Doremus vs. McCormick. 9 Do., 145, Gwynn vs. Lee. 15 Eng. Law & Eq. Rep., 71, Harris vs. Farwell. 35 Eng. Law & Eq. Rep., 165, Ex-parte Graham. 9 Gill 348, Williams vs. Hall. 5 Md. 397, Yates vs. Donaldson. Gow on Part., 48.

2nd. That both the defendants' prayers should have been rejected, 1st. Because there was no evidence to sustain them, there being no proof that the notes of the 31st of December 1851, were executed and delivered without Boyd's knowledge or assent. Nor of any agreement to receive these notes in full payment or extinguishment of the original one, nor of any design on the part of the plaintiff to collude with Rogers to defraud his co-partner, Boyd. 4 Md. 288, Thruston vs. Lloyd. 5 H. & J. 32, Mercer vs. Walmsley. 2 Md. 234, Merchants Mutual Ins. Co. vs. Wilson. 7 H. & J. 295, Riggin vs. Patapsco Ins. Co. 6 Md. 151, Key vs. Dent. Ibid., 465, Plank Road Co. vs. Bruce. 2 H. & G., 411, Smith vs. Edwards. 5 G. & J. 304, Davis vs. Calvert. 5 Md. 397, Yates vs. Donaldson. Ibid., 444, Stewart vs. Spedden. 7 H. & J. 220, Barger vs. Collins. 9 Gill 136, Anderson vs. Garrett. 8 Md. 337, Corner vs. Pendleton.  [**12]  2nd. Because these prayers are not law, for the reasons and by force of the authorities above cited under the first point.

William Schley for the appellee, argued:

1st. Conceding the law of the plaintiff's first prayer, and that there was evidence to support its hypothesis, still it does not follow, as a necessary legal consequence, because the $ 346.26 note was, under the circumstances, in the hands of the plaintiff, as between him and Boyd, a valid and binding engagement of the firm, that therefore the three notes received therefor are, as between the plaintiff and Boyd, valid and binding engagements of the firm. The first note was received by the plaintiff in the regular course of business, bona fide, without notice, and on the faith of the partnership name, but not so as to the three other notes. These, though given on account of a partnership liability, were not given in the business of the partnership, were not received by the plaintiff in the regular course of his business, nor as a bona fide purchaser without notice, but were received with express notice of the fraud of Rogers in issuing the original note, and if there was not positive proof there were strong grounds [**13]  to lead the plaintiff to suspect that the object of Rogers was to conceal the transaction from the present knowledge of Boyd, and by getting time, at the partnership risk, to pay the money, if he could, out of his separate means.

2nd. As between Rogers and Boyd, the issuing of the original note was a fraud on Boyd. It was, therefore, as between them, the duty of the former to take up the note at once, in exoneration of the partnership liability. As between them giving new notes was equally a fraud on Boyd, because it continued the partnership liability, and was itself an act of misconduct intended to cover up and conceal an antecedent act of misconduct.

3rd. The plaintiff, having knowledge of the circumstances, cannot be deemed a bona fide holder of the new notes. Even if his conduct was prompted by motives of kindness to Rogers, and a desire to afford him a chance to pay off the debt, in instalments, out of his private means, still the law must denounce the act as a fraud upon Boyd. The plaintiff ought to have enforced his right to claim payment of the first note, or in taking new notes he ought to have secured the assent of Boyd. He had no right, either from a desire to [**14]  facilitate the collection of his debt, or from feelings of kindness towards Rogers, to continue Boyd's liability, without his assent, upon a transaction fraudulent in its origin, and of which he knew that Boyd was ignorant, especially as the plaintiff had reasonable grounds to suppose, from the conversation proved by Simms, that it was the object of Rogers to keep Boyd in ignorance of the transaction. In support of these views see Story on Part., secs. 128, 130, 131. Gow on Part., 48, 50. 4 How., 404, Smyth vs. Strader.

4th. The declaration counts upon the original note and also upon the new notes. The plaintiff's second prayer asserts, that if the jury find the facts stated in it, the plaintiff "is entitled to recover," without saying upon which note or notes, and for this reason is defective. When instructions are asked they should be precise to a particular intent. 15 Pet., 377, United States vs. Bank of Metropolis. Again, this prayer does not embrace, as part of its hypothesis, the question of bona fides on the part of the plaintiff, while both of the defendant's prayers make it material. The defendant's first prayer raises the question as to the extinguishment of the original [**15]  note. This depends upon the intention of the parties, and it was put to the jury by this prayer, whether the giving up of the old note, under the circumstances, was an extinguishment of it or not. Story on Prom. Notes, sec. 438. 1 Parson's on Cont., 365, 368, 369. 8 Md. 343, Corner vs. Pendleton. 10 Do., 27, Berry vs. Griffin.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*115]  LE GRAND, C. J., delivered the following opinion in the case:

 [*116]  This was an action of assumpsit. In addition to the common money counts the declaration contained special counts on several promissory notes, one dated the 24th day of May 1851, drawn to the order of William Simms, and by him endorsed for $ 364.26, payable six months after date. The other special counts are respectively on three notes, dated the 31st day of December 1851, each, made by the appellees and endorsed by William Simms; one for $ 125.24, payable sixty days after date; one for $ 124.45, payable four months after date, and the other for $ 125.50, payable six months after date. The action was brought by the appellant, as endorsee, against the appellees, as makers of each [**16]  and every of these notes. The only facts in the case, as exhibited by the record, necessary to be noticed, may be thus stated:
Before maturity of the note dated the 24th day of May 1851, it was endorsed by the payee, Simms, to the appellant, and by the latter deposited for collection in the Merchants Bank of Baltimore. It became due on the 27th day of November 1851, and being unpaid, was protested for non-payment. On the 31st day of December following the appellant directed the witness, Bowerman, to take for the note the three others already noticed and mentioned in the declaration. These notes were intended, (interest being included,) as a renewal of the note which had been protested. Before they were signed and delivered to the appellant conversations took place between him and Rogers, one of the appellees, in the presence of others; the only part of which it is material to this case to notice, is the following: Rogers said the note for $ 364.26 had been given without his co-partner's knowledge, and was not for a partnership transaction; and that he, Rogers, wished the plaintiff to take three notes which Rogers promised to pay. The plaintiff, Hopkins, said in reply, that it [**17]  was a matter of indifference to him, whether Rogers' partner knew of the $ 364.26 note or not, that he had given value for it in the course of business, and took it on the faith of the co-partnership name, and with no notice that it had been given without Boyd's knowledge or assent, and not for a partnership transaction.
On this state of facts four instructions were asked of the 

 [*117]  court, two on the part of the appellant, and two on the part of the appellee, Boyd, who had severed in his pleading and defence. The latter and the first on the part of the appellant were granted; the other prayer was rejected. In the granting of the two instructions on behalf of Boyd, and the rejection of the second prayer of the appellant, we are of opinion the court erred.
The first prayer of the appellant, which was granted by the court, merely asserted the general doctrine, (the correctness of which we understood the counsel for the appellee, Boyd, to concede,) that if the jury should find from the evidence, that the appellant discounted for value, before its maturity, the note for $ 364.26, that had been made by Rogers in the name of the firm of Rogers and Boyd, he being a partner with Boyd [**18]  in the same firm, and mostly signed the notes of said firm, and the payee of said note endorsed the same to the appellant, who took it without knowledge that it had not been given for a partnership transaction, and without knowledge that it had been given without the assent of Boyd, yet, notwithstanding this want of knowledge and assent of Boyd, said note was binding on the firm.
Although, after dissolution of a partnership, one partner cannot, by a new contract, in the name of the firm, bind his late partner, even when the consideration is a debt of the firm, (8 Md. 399, 403,) yet, that during the existence of the co-partnership he can bind his co-partner, by signing the name of the firm to negotiable paper, is a proposition too plain to require citations to sustain it, but if any were required the following are directly to the point.  Manning & Co. vs. Hays, 6 Md. 5. Boyd vs. McCann, 10 Md. 118.
This being so, the question arises, did the court properly reject the second prayer of the appellant? We think not. It reasserts the proposition contained in the first prayer, adding thereto the circumstances connected with [**19]  the non-payment and protest of the original note, and the giving of the three others in renewal thereof, and concludes by asking the court to instruct the jury, if they should believe the facts so set out in the prayer, that then the plaintiff is entitled to recover. The 

 [*118]  evidence shows that the three notes, which bear date the 31st day of December 1851, were given as a renewal of the one of the 24th day of May preceding.
It is a clear proposition, that unless the taking by the appellant of these last notes was an extinguishment of the original note, then there was no payment of it, and a recovery on it can be had in this action, it being specially declared upon. The taking from the same party of a security of no higher grade or dignity, for another, never works an extinguishment or amounts to a payment, but leaves the original obligation in full force, the holder being free to sue either on the original or substituted one. The following authorities are abundantly full on this point.  Glenn vs. Smith, 2 G. & J. 493. Maryland & N. York Coal & Iron Co. vs. Wingert, 8 Gill 170. Berry vs. Griffin, 10 Md. 27. [**20]  
There was no evidence of any agreement to receive the three notes in full payment and extinguishment of the original one; so far from it, it appears from the evidence of the witness, Simms, (a witness on the part of Boyd,) that the proposition was to give the notes as a renewal. The prayer should have been granted; the facts which it accumulated on those set out in the first prayer, were altogether supererogatory. Had the first prayer concluded with an instruction of the right of the plaintiff to recover, it would have contained the whole law of the case. These views, of course, dispose of the prayers of the appellee, Boyd. It is not, however, improper to add, that there is not a particle of evidence disclosed by the record, from which the jury could rightly infer the payment and extinguishment of the original note, nor of any design on the part of the appellant to collude with Rogers to defraud his co-partner, Boyd, facts which the prayers submitted on his behalf ask the jury to find.
The plaintiff had a right to elect to maintain his action, either on the original note or the renewals, or on the insimul computassent count.
So far, what has been stated is the individual [**21]  opinion of the judge who delivers it. But the whole court are of the opinion that the plaintiff may recover on the renewals; that for the 

 [*119]  reasons already assigned, the appellant took a good title when he obtained possession of the original note, and to deny the right of Rogers, during the existence of the co-partnership, to renew it, would be to render a perfect title valueless.
Judgment reversed, and procedendo awarded. 

45 of 47 DOCUMENTS 

CHARLES B. CALVERT and GEO. H. CALVERT, vs. RICHARD WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

10 Md. 478; 1857 Md. LEXIS 12 

JUNE, 1857, Decided 

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

The bill in this case was filed in the court of chancery, on the 3rd of June 1850, by the appellants, as administrators de bonis non of Thomas Cramphin, and as executors and residuary devisees and legatees of George Calvert, who had been the administrator of Cramphin, and trustee, under certain conveyances, executed by agreement, in order to terminate the litigation respecting the will of Cramphin, against the appellee and others, cestui que trusts under these conveyances and specific legatees of Cramphin, and the heirs at law of George Calvert.

The object of the bill was to settle up and distribute the entire estate of Cramphin, real and personal, under the direction of the court of chancery. The appellee, Williams, had been, pending the litigation respecting Cramphin's will, appointed administrator ad colligendum, and afterwards administrator pendente lite of the personal estate of Cramphin; and the bill charges that he has not delivered over all the assets to the regular administrator, but yet retains many parcels of the estate, with the rents, profits and increase thereof, of great value, unaccounted [**2]  for; and prays that he may account for all the property and effects of Cramphin, and the rents, issues and profits thereof, which came, or might have come, into his hands, as such collector and administrator; and that he may discover whether certain specific legacies, which he claims to have delivered and paid to certain legatees of the name of Williams, have been delivered or satisfied, or now remain due. Such are the allegations and prayers of the bill, so far as the appellee is concerned. Other matters, numerous and complicated, in reference to the settlement of this large estate, are involved in the bill, but need not be stated.

Some of the defendants being non-residents, an order of publication was passed, and on the 9th of August 1850, a subpoena was issued, returnable at the following September term of the chancery court, against the defendant Richard Williams, and others, of Montgomery county, which was returned by the sheriff "non sunt." The process was then renewed to December term 1850, and again returned "non sunt." It was then renewed to March term 1851, and returned, "Summoned Richard Williams and non sunt the rest," at which term, viz: on the 15th of April 1851,  [**3]  an interlocutory decree was passed against Richard Williams for failing to appear, and on the 9th of July following, an ex-parte commission to take testimony was issued to Frederick Pinkney of the city of Baltimore, under which the testimony was taken, in that city, of witnesses residing in Montgomery county, to sustain the allegations of the bill against Williams, and duly returned on the 10th of May 1852. On the 9th of July 1852, the answers of the defendants, belonging to the Cramphin family, having been previously filed, a commission-in-chief was, by agreement between the counsel for that family and the counsel for the complainants, issued to Frank H. Stockett, of the city of Annapolis, under which testimony, consisting of documentary evidence, was taken in that city and returned on the following day. The object of this testimony was to affect the Cramphins.

On the 31st of May 1853, the complainants dismissed their bill against the other defendants of the name of Williams, and submitted the cause to the chancellor for a decree, and on the same day a decree was passed, directing, among other things, Richard Williams and Charles B. Calvert, to account as to all matters relative [**4]  to the estate of Cramphin, of which they ought respectively to account, in order that a final settlement of the estate may be made; and referring the case to the auditor "to take such accounts from the pleadings and proofs now in the cause, and such other proof, if any, as the parties may produce before him, on giving the usual notice." Notice directed, "To the parties in this cause," of the time and place of taking the audit, was sent by the auditor to the solicitor for the complainants, with request to have it served on the opposite parties, and was returned, "service admitted," by the complainants' solicitor, and the solicitor for the defendants, "other than Williams and his family." And on the 12th of July 1853, the auditor made his report, accompanied by account A, in which Williams is charged with the sum of $ 28,510.59, with interest on part thereof, as due by him to the estate of Cramphin, and on the 28th of July 1853, the chancellor passed a decree, ratifying and confirming this account, with the exception of a certain sum credited to Williams, which is left the subject of further directions, and directing Williams forthwith to pay, or bring into court to be paid, to the complainant [**5]  Charles B. Calvert, as administrator de bonis non of Cramphin, the sum of $ 28,510.59, with interest as stated in the account. On this decree a writ of fieri facias upon application of Calvert, was ordered to be issued on the 15th of November 1853, but it does not appear that it was ever issued.

On the 17th of February 1854, Williams filed a petition, praying, that the enrolment of this decree may be opened, and that he may have relief upon simple order on this petition, by leave to file a bill of review, or by such other mode of redress as his case may require, and for general relief. In this petition he admits that the subpoena, returnable to March term 1851, was duly served upon him, but to excuse his non-appearance, he avers, that from the inception of this suit until some time in the latter part of January 1854, he was in utter ignorance, in fact, of its institution, and had not the most remote idea that it was in progress against him, and that the decree has been obtained against him by surprise and mistake, and through no wilful default or neglect on his part; that the day after the subpoena was served on him he went to Rockville to consult counsel, and inquire into the [**6]  nature of the suit, and called on Richard I. Bowie, Esq., who had long been his counsel, and told him that a chancery summons had been served on him, the purport of which he did not understand, to which Mr. Bowie promptly replied: "Give yourself no uneasiness about it, it is a mere matter of form and has been issued in a case filed by me for Duffy, to validate his deed; I will put in your answer, or at all events, attend to it for you;" and that relying upon this assurance, and feeling no interest in Duffy's suit, though aware he might be a necessary party to it under Cramphin's will, and believing that he had done all that was required of him, he returned home and dismissed the matter from his mind. In further explanation of his conduct, and that of his counsel, he avers, that at the time this bill was filed there were pending, and had been for many years, two suits by Calvert against him, the one in the orphans court, and the other in the county court of Montgomery county, to accomplish the same object precisely, so far as he is concerned, as is sought by this bill; that he has always been ready and anxious to account, and hoping from time to time to do so finally, either in the [**7]  orphans court, or in the suit in the county court, has had his papers and vouchers from time to time, and for years at a time, in Rockville, at one time in the hands of the auditor of the county court, and at others in the hands of his counsel, to be used, as occasion required, in the orphans court, or before the arbitrators to whom the suit at law was, in one stage of its prolonged existence, referred; but he has ever been prevented from accounting by circumstances beyond his control, and has acted at all times under the advice of counsel; that Mr. Bowie was and is his counsel in the above mentioned suit in the county court, and the fact of his expecting the petitioner's accounts to be settled at Rockville, in one or the other of the above suits, precluded him from entertaining the idea that another suit had been instituted, and strengthened his conviction that the summons aforesaid had been issued in Duffey's suit, or rather prevented the suspicion even of any other case, from entering his mind. These facts are urged in support of the allegation of surprise, and as other facts tending to the same result, the issuing of the commissions to distant and remote places, although the witnesses [**8]  resided in Montgomery county, the irregularity in issuing and executing the commission to Annapolis, the failure of the auditor to give notice to the petitioner of the time and place of taking the account, are stated. He then avers that he has paid away property in the discharge of the duties imposed upon him as collector and administrator pendente lite, and during his management of the estate, of, at least, $ 30,000, for nearly all of which he has now written receipts and vouchers, and for not one dollar of which has he received credit; that he has kept accurate and detailed accounts of his receipts and disbursements, and has held himself ready at all times to account; and that upon a full and fair accounting it will be ascertained that he is not indebted to the estate at all; that he now produces an answer ready to be filed, setting out his case upon its merits, waiving all technical defences, accompanied by vouchers to the number of nearly six hundred in support of the credits claimed.

This petition, under oath, was set down for hearing on the 2nd of March 1854, and on the 4th of that month, Calvert filed his answer thereto, in which he insists, that the decree was regularly [**9]  recovered, according to the course of the court, without fraud on his part or any one else, and without surprise on the petitioner, and he therefore relies on the decree, as a bar to all relief prayed in the petition. The particular allegations of this answer, so far as necessary to be stated, will be found in the opinion of the court below, hereinafter set out. On the 9th of the same month, the proceedings were, upon the application of Williams, removed to the circuit court for Montgomery county, and on the 10th, the following act of Assembly, of 1854, ch. 160, was passed, entitled: "An act for the relief of Richard Williams of Montgomery county."

"Whereas, it hath been represented to the General Assembly of Maryland, that a decree, by default, has been passed by the court of chancery, in a case in which Charles B. Calvert and George H. Calvert are complainants, and Richard Williams and others, are defendants, requiring payment by said Williams, of a large sum of money, and that such decree has been obtained, by reason of a misapprehension and mistake on the part of Williams, and of the counsel to whom he applied in the case, and in the absence of wilful neglect or laches; and [**10]  whereas, it hath been represented, that the execution of said decree would operate gross injustice, inasmuch as Williams is alleged to be entitled to credit for payments and just allowances, sufficient in his view to show an indebtedness to him from the estate, for an account of which said suit was instituted, of the benefit of which credit he has been deprived, under circumstances entitling his case to the favorable consideration of the Legislature; and whereas, an application has been made to the court of chancery, for opening the said decree, and allowing a full and fair accounting by him, and it is feared that under existing laws, the court cannot grant the said application, or administer such relief as it is believed the case demands: Therefore,

"SECTION 1. Be it enacted by the General Assembly of Maryland. That any court to which the case, aforesaid, may be removed according to law, be, and it is hereby authorised, upon any application or petition now filed, or hereafter to be filed, and upon the establishment of a satisfactory prima facie case, to open any decree or order heretofore passed in said case, to the ends that said Williams may account fully, fairly and equitably,  [**11]  for the estate real and personal, of Thomas Cramphin deceased, formerly under his care and management; Provided, the said court shall be satisfied, that justice will be promoted by opening such decree or order; and provided, it be opened upon such terms as to the payment of costs, the nature of the defences to be relied upon, the taking of testimony, and the time within which it is to be returned, and the prevention of an alienation, in the meanwhile, of any property now held by said Williams, as to the court may seem consistent with equity; it being the design of this act to remove any legal impediment, to the granting of the prayer of said Williams' petition, and to afford him such redress upon the principles of justice and equity, as he may show himself entitled to, when relieved from the operation of any technical or rigid rule of law.

"SECTION 2. And be it enacted, That said court in its discretion, may stay execution upon said decree, until said application shall be heard and adjudicated, and either party shall have the right to an appeal, from any order or decree to be passed upon the said petition or application; and in the event of an appeal, this act shall apply to the [**12]  Court of Appeals, in like manner, and to the same extent as it is designed to apply to the court aforesaid.

"SECTION 3. And be it enacted, That this act shall take effect from the day of its passage."

On the 30th of May 1854, Calvert applied for a fieri facias upon the decree, to which application, Williams, on the same day, filed an answer, under oath, in which he repeats the allegations of his petition to open the decree, refers to and relies upon the act of Assembly, above stated, sets out various proceedings in the case, in the orphans court of Montgomery county, above mentioned, copies of which are filed with his answer, in support of the averment, that he has always been willing and ready to account, and prays that execution of the decree may be stayed, until his former application for an opportunity to answer the bill, and for the establishment of a satisfactory prima facie case to open the decree and account, shall be adjudicated. Upon this application and answer, the court, on the 25th of August 1854, passed an order authorising the parties to take testimony before a justice of the peace, upon six days' notice, or under a commission, in reference to the satisfactory [**13]  prima facie case, contemplated by the act of 1854, ch. 160, and requiring Williams to convey all his property to a trustee, in trust for the payment of any sum which he may be decreed to pay in this suit.

Under this order, testimony was taken on both sides, the purport of which sufficiently appears from the following opinion of the court below, (BREWER, J.,) delivered upon the passage of the order appealed from.

"This case comes before the court upon a petition to open a decree of the chancery court, passed in the chancery court, and transmitted to this court under the constitution and act of Assembly in pursuance thereof. The decree was founded on an interlocutory decree, under the act of 1820, ch. 161, and ex-parte testimony and auditor's accounts. The defendant was summoned to appear, and the interlocutory decree was for want of appearance. The final and interlocutory decrees are now sought to be opened on the grounds of mistake by the defendant and surprise upon him, and under the apprehension that the court, although it might be disposed to open the decree, for the purpose of letting in the merits of the case, could not do so according to the practice of the court, an [**14]  act of the Legislature, was passed at the session of 1854, ch. 160, authorising the court on any application or petition, and on the establishment of a satisfactory prima facie case, to open the said decrees, provided the court shall be satisfied, that justice will be promoted by opening said decrees.

"This act of Assembly is said to be unconstitutional, in consequence of the assumption therein of judicial power. The point has been fully argued, and many cases referred to in support of it, but it is not necessary to make any particular reference to them, inasmuch as, in the opinion of the court, it has been fully settled by the decisions of the courts of Maryland. 3 H. & J., 43, Gover vs. Hall. 1 G. & J., 463, Crane vs. Meginnis. 12 Do., 286, Prout vs. Berry. This case comes within the established principles of those cases. The act determines no right of the defendant petitioner, and affects no right of the complainant or any other person; nor does it deprive the complainant of any evidence or proceeding in the case, or subject him to any disadvantage. On the contrary, it provides, that the court shall be satisfied, that justice will be promoted by opening such decree, and especially [**15]  stating the design of the act to be, to remove any legal impediments to opening the decree, and to afford the petitioner such redress upon the principles of justice and equity, as he may show himself entitled to, and gives to the court full power to annex such equitable conditions to its order, as will remedy every inconvenience to which the complainant might otherwise be subjected to by it.

"This act authorises the court to open the decree, 'upon the establishment by the petitioner of a satisfactory prima facie case.' Does it mean a prima facie case, as to the rights of the petitioner, which may be fully determined after the opening the decree, or a prima facie case, as to the propriety of opening the decree? I think the latter, because the act further provides, that the court shall also be satisfied, that justice will be promoted by opening such decree. It is not altogether clear what the Legislature meant by a prima facie case. If they used the words in a technical sense, it would seem to be sufficient for the petitioner to establish a satisfactory case, upon his own evidence, without reference to contradictory facts, adduced on the part of the complainant. But a contrary course [**16]  has been pursued. The complainant has taken testimony, which he claims to be considered both on this point and that arising under the other proviso in the act. The Legislature, I presume, from the recitals in the act, did not expect the court, in forming its opinion, to be governed by principles differing very materially from those by which it is ordinarily governed, in applications to its discretion in cases of this kind. It seems, however, to require, not only the establishment of the fact, that the case had not been decided upon its merits, but that sufficient merits exist, to promote justice by opening the decree. It also seems to require, that there should have been an absence of wilful neglect or laches, on the part of the petitioner and his counsel, and a misapprehension and mistake on their parts.

"I am compelled to believe, that justice would be promoted by opening this decree. The complainant, in his answer to the petition, admits it is 'highly probable,' that payments to a large amount have been made by the petitioner, for which he has not been credited, though he qualifies this admission by the statement of his belief, that the petitioner received large sums, for which [**17]  he had not been charged by the auditor, and his suspicions, that he is indebted to him in as large a sum, at least, as has been recovered against him. The complainant seems to think, that the account is erroneous, but that by surcharges and omitted credits, the balance against the defendant would be about the same. The petitioner, therefore, if the decree should stand, would be charged more upon conjecture than a just accounting.

"If the mistake or misapprehension, and the absence of wilful neglect or laches, is to be shown by evidence, other than the petitioner's own oath, and the opening of the decree depended on that alone, he could hardly obtain relief. The subpoena would seem to be to him, (if he read it,) well aware as he was of the character of his business connexion with the Calverts, and his litigation with them, a sufficient indication of the nature of the proceeding, to afford him strong inducement to give to its commands his speedy attention, of which there appears to be no other evidence than his own oath. The testimony of the counsel to whom he applied, was easily accessible to him, and it is difficult to conceive why it was not taken, more especially as the complainant [**18]  had stated in his answer, 'that he had been informed and believed, that the counsel denied that any such conversations were had by him with the said petitioner, as in said petition is pretended, and that he was therefore advised to insist, that if any reliance was to be placed on such conversations, that the counsel should be regularly examined, touching the same.' His statement ought to have been exhibited in some form to the court, or its absence accounted for, and the omission to do so must induce the court to look upon the petitioner's statement with less confidence. In the case of Burch vs. Scott, 1 G. & J., 393, there was no regular examination of the counsel. The court acted on his affidavit filed with the petition. The affidavit of the petitioner alone, however, might be sufficient to establish the prima facie case referred to in the act. Supported as it is by the probabilities of the case, I think it is sufficient. Unless he had held the conversation with his counsel as stated, after having seen the subpoena, having so large an interest at stake he would hardly have rested satisfied. His conduct was consistent, and only consistent with the assurances given him. Moreover, it [**19]  does not appear, that ever after the service of the subpoena, he had the least intimation of the pendency of a suit in chancery against him. On the contrary, the subsequent proceedings were calculated to keep him in the dark. The testimony was all taken in places remote from his residence, and no notice or intimation of them appears to have been given to him by the complainants, or have otherwise come to his knowledge. The suit in Montgomery, embracing the same subject, was still pending, and the counsel in that case on both sides, resided in that county. He might, therefore, very reasonably have supposed, that they would have given him information of any other proceedings in reference to it.

"The charge of fraud or surprise, is not substantiated. I do not see any evidence of a studious concealment of the proceedings in chancery by the complainant. His counsel seems rather to indicate that, tired of the protracted litigation in the circuit and orphans courts, which he attributed to the defendant's unwillingness to come to a fair settlement, he was determined to press it in another tribunal, leaving it to the defendant to take care of himself. For this purpose he dismissed, as [**20]  against the other defendants, his bill, which was originally intended to place the whole accountability of himself as well as Williams, and the disposition of the whole estate, under the direction of the court of chancery, and proceeded to recover from Williams the amount which he supposed him to owe, intending to run the risk of the disposition of the whole estate in the ordinary manner.

"But the petitioner has, I think, legally established a satisfactory prima facie case, that there was no wilful neglect or laches on his part. Independent of the particular provisions of the act of Assembly, I think there would have been sufficient ground for opening this decree. The case of Burch vs. Scott, 1 G. & J., 393, is the leading case on this subject, and is, if I may be permitted such a remark, of a decision of the eminent gentlemen, then constituting the Court of Appeals, rather a hard case. But the laches there were much greater than they are here. A subpoena and injunction were served on the defendant to September term 1823, and not appearing, an attachment was returned "attached" to March term 1824, and an order to take the bill pro confesso served on him in May 1824, making four [**21]  distinct notifications of the filing of the bill, and that the complainant was pressing it to a conclusion. The defendant however attempted to lay the whole blame on his counsel, from whose neglect suitors have sometimes been relieved. But the answer seems eventually to have been prepared and sworn to in time to prevent a decree if it had been filed, but the defendant, to save postage or the expense and time necessary to carry it himself, left it to his counsel to send it by the stage; to counsel whose business is not to carry papers for their clients, and who, when eminent as his counsel was, are apt to become careless in such matters. There too the case was not so complicated, nor the injury so great as it might be here. The chancellor however opened the decree, but the Court of Appeals reversed his decision, and in their opinion, they say, "that after being repeatedly in contempt by his disregarding the solemn process of the court, the complainant makes his present application with an ill grace." They further say that there is no general and positive rule on the subject; that Lord Thurlow observed in one case, that if a defendant comes in after a bill has been taken pro confesso,  [**22]  upon any reasonable ground of indulgence, and pays costs, this court will attend to his application if the delay has not been extravagantly long. This, the judge says, makes the case to depend on which side the greatest inconvenience would lie. If granted, he says, the complainant might gain an advantage which he had lost by his own repeated contumacy and gross negligence; and on the other hand, instead of a regular and speedy administration of justice by a prompt and respectful attention to the process and jurisdiction of the court, they will be disregarded and disobeyed. In this case the petitioner cannot be charged with repeated contumacy or gross negligence. The latter part of the judge's remarks are very indefinite, and are considered not to be particularly applicable to this case. The complainant was delayed here for a considerable part of the time by other defendants not connected with the petitioner, during which no process had been served upon him, and might still have been delayed by them if he had not abandoned the original object of his bill and dismissed it as to them."

"It is thereupon this 24th day of July 1855, adjudged, ordered and decreed, that the decree of [**23]  April 15th, 1851, and the subsequent decrees of May 31st, 1853, and July 28th, 1853, be, and they are hereby, opened and rescinded, and the petitioner is hereby authorised and permitted to file an answer to the original bill, and to take any testimony in reference to the charges against him or his defense, to the end that the said petitioner may account fully, fairly and equitably for the estate, real and personal, of Thomas Cramphin, deceased, formerly under his care and management. It is further adjudged, ordered and decreed, that the said petitioner shall pay to the complainant all the costs of this suit incurred by him up to the present time, and shall not plead limitations or lapse of time or any dilatory plea, or make any defense not applying exclusively to the merits of this case; and that he shall file his answer or plea, on or before the first day of September next, and his testimony shall be taken and returned to this court, on or before the first day of November next, unless the time shall be further extended by order of this court, and the case stand for hearing at the next November term, unless the time shall be extended by further order. It is further adjudged, ordered [**24]  and decreed, that the complainant shall have the benefit of all the testimony taken heretofore by him in any form, and of all the papers heretofore filed or exhibited by him as evidence, in so far as the same would be legal evidence in the cause if filed regularly, or returned in the proper manner. It is further adjudged and ordered, that the conveyance executed and filed, under the order of August 25th, 1854, shall stand as if required also by this order, and that no alienation of the property therein included shall be made by the grantors or grantee in said deed; and the said Williams is hereby prohibited and enjoined from aliening any part of any property in his possession."

From this decree the complainants appealed.  

DISPOSITION:
Decree affirmed, but without costs in this court.  

HEADNOTES:

An act of the Legislature, authorising a court of equity, upon the application or petition of the defendant in a certain cause, and "upon the establishment of a satisfactory prima facie case, to open any decree or order" which had been passed against him in said cause, to the end that he "may account fully, fairly and equitably for the estate" which had been under his management, and for a settlement of which the suit was instituted, "provided the said court shall be satisfied that justice will be promoted by opening such decree or order, and provided it be opened upon such terms," as to costs, the nature of the defences to be relied on, the taking of testimony, &c., "as to the court may seem consistent with equity, it being the design of this act to remove any legal impediment to the granting of such application and to afford the defendant such redress, upon the principles of justice and equity, as he may show himself entitled to, when relieved from the operation of any technical or rigid rule of law," is constitutional.

This act does not impose on the court, as a duty, primarily to decide whether or not the defendant will be able ultimately to make out his defences, but only that he shall exhibit a satisfactory prima facie case. 

COUNSEL:
Lloyd W. Williams and Thos. S. Alexander for the appellant, argued:

1st. That Williams has not entitled himself, according to the general principles of the court in such cases, to open the decrees complained of. These decrees were regularly entered, and he has offered no proof whatever in impeachment of Calvert's conduct, or in extenuation of his own culpable negligence. The case of Scott vs. Burch,  [**25]  1 G. & J., 393, is the leading case in this State upon the question, when and how a final decree can be opened or attacked, and conclusively decides that it cannot be done upon such an application as this.

2nd. That the special act of Assembly on which the application is based, directs the court to open the decrees on proof by Williams of a satisfactory prima facie case; that is to say, upon a case to be stated by Williams, and on proof to be submitted by him, without regard to any rebutting evidence which could or might be offered by Calvert in support of the decrees. This rule of judicature, adopted for this special case, is, as we insist, against natural justice, which secures to a party impleaded in any matter the privilege of self-defence.

3rd. But if it is argued that the Legislature did not intend to deprive Calvert of the privilege of rebutting the case which Williams should attempt to make, by averment or evidence on his part, then we insist, that a satisfactory prima facie case, in this sense, is nothing more than probable cause in the usual acceptation of this court, and that Williams has failed to show probable cause against the decrees, since upon the entire [**26]  record the decrees were the results of his own inexcusable negligence and contempt of the authority of the court, and since he has thought proper to suppress the evidence in his possession, that is to say, the evidence of his receipts, without which it cannot be shown that any substantial wrong will be done him by the enforcement of the decrees.

4th. That if the act of 1854, ch. 160, affects to confer upon Williams a right to open the decrees complained of in any other manner, or upon any other terms, or for any other cause, than would govern the action of the court in like cases between other suitors, it is unconstitutional and void. It is denied that the Legislature can, at its pleasure, deprive the citizen of his right to execution of a decree recovered in a court of competent jurisdiction, according to the course of that court and the law of the land. It is denied that the Legislature can prescribe for the discussion and determination of the right of an individual citizen involved in a particular cause, a special rule of judicature unknown to the law of the land, and different from the rule which would be applied to the discussion and determination of like issues, between [**27]  other suiters. 3 H. & J., 43, Gover vs. Hall. 12 G. & J., 286, Prout vs. Berry, and same case in 2 Gill, 147. 8 Gill, 145, Miller vs. Fiery. Dec. of Rights, Articles 6, 21. 2 Md. Rep., 452, Wright vs. Wright. 15 Penn. State Rep., 18, DeChastellux vs. Fairchild. 2 Barr, 277, Norris vs. Clymer. 3 Greenleaf's Rep., 326, Lewis vs. Webb. 4 Do., 140, Durham vs. Lewiston. 2 Chipman, 77, Bates vs. Kimball. 1 New Hamp., 199, Merrill vs. Sherburne. 11 Mass., 396, Holden vs. James. 9 G. & J., 409, 412, Regents, &c., vs. Williams. 1 Md. Ch. Dec., 252, Harness vs. Ches. & Ohio Canal Co. 1 Bl. Com., 44.

5th. The decree appealed from is clearly erroneous in overruling the former decrees absolutely, as it thereby avoids acts done in execution of the decrees affecting the interests of other parties, and materially delays and impedes the administration of justice as between those other parties in matters in which Williams has no concern. It is conceded this part of the decree is warranted by the act, but that the act should contemplate such an unmitigated wrong and oppression only strengthens the argument against its constitutionality.

A. B. Hagner and Alex. Randall for the appellee, argued:  [**28]  

1st. That, independent of the act of Assembly, there were, according to the general principles and practice of courts of equity, sufficient grounds for opening this decree, upon the petition of Williams, because it was obtained against him on the ground of his having failed to appear, when such failure was caused by mistake and surprise, and through ignorance of the service of the summons, he intending no contempt of the court, and never actually believing he had been served with this process. In support of the power and jurisdiction of the court so to act in such a case, they cited 11 G. & J., 137, 426, Oliver vs. Palmer & Hamilton. 9 Md. Rep., 67, Contee vs. Pratt. 2 Madd. Ch. Pr., 467. 2 Smith's Ch. Pr., 14. 1 Ves., Sen., 205, Kemp vs. Squire. Ibid., 326, Wright vs. Wright. 1 Dickens, 62, Robson vs. Cranwell. Ibid., 109, Kinsay vs. Kinsay. Ibid., 109, Hankwitz vs. Ocarre. Ambler, 92, Cunyngham vs. Cunyngham. 3 Merivale, 698, Attorney General vs. Brooke. 2 Daniel's Ch. Pr., 1230, 1231, 1232. 1 G. & J., 393, Scott vs. Burch. 1 Md. Ch. Dec., 20, Barry vs. Barry. Ibid., 455, Pfeltz vs. Pfeltz. 2 Do., 292, Hughes vs. Jones. 6 Munf., 267, Erwin vs. Vint. 11 Eng. Cond. Ch. Rep., 101,  [**29]  Stevens vs. Guppey. 1 Craig. & Phillips, 361, Booth vs. Creswicke. 7 Eng. Law & Eq. Rep., 14, Hargrave vs. Hargrave. 1 Johns. Ch. Rep., 200, Radley, et al., vs. Shaver, et al. 3 Do., 424, Lansing vs. McPherson. Ibid., 415, Beekman vs. Peck. 1 Do., 539, Wooster vs. Woodhull. 8 Paige, 176, Tripp vs. Vincent. 7 Do., 509, Millspaugh vs. McBride. 11 Geo. Rep., 654, Carter vs. Torrance. 1 Drury & Warren, 72, 74, Enraght vs. Fitzgerald. 7 Eng. Law & Eq. Rep., 216, Morgan vs. Morgan. 2 De Gex Macn. & Gordon, 28, Turner vs. Turner. 11 Irish Eq. Rep., 125, Murray vs. Byrne.

2nd. That the order opening this decree was correct, also because the decree is against the equity and merits of the cause, even as shown by the complainants' allegations and proofs, and because it was obtained against the rules and practice of the court of chancery, the proper notice from the auditor not having been given, and because it is not a final decree, but simply an interlocutory decree, or a decree to account. To sustain these views, they cited 6 G. & J., 204, Evans vs. Iglehart. Alex. Ch. Pr., 122, 124, 127. 2 Madd. Ch. Pr., 463. 1 Drury & Welsh, 255, Jackson vs. Welsh.

3rd. But if it should be supposed [**30]  that there existed any technical or other objection to the opening of this decree, it is removed by the act of Assembly of 1854, ch. 160, which, as we insist, is constitutional and valid. 2 Gill, 150, Prout vs. Berry. 7 Do., 321, Day vs. The State. 9 Do., 309, Baugher vs. Nelson. 12 G. & J., 400, State vs. Balto. & Ohio Rail Road Co. 3 H. & J., 43, Gover vs. Hall. 2 Md. Rep., 450, Wright vs. Wright. 3 Dallas, 386, Calder vs. Bull. 8 Pet., 88, Watson vs. Mercer. 16 Do., 59, Watkins vs. Holman. 10 How., 396, Balto. & Susq. Rail Road Co. vs. Nesbit. 3 Scammon, 465, Edwards vs. Pope. 4 Munroe, 94, Kirby vs. Chitwood. 6 Do., 592, Shehan vs. Barnett. Smith's Com., 500. 2 Pet., 660, Wilkinson vs. Leland.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*495]  LE GRAND, C. J., delivered the opinion of this court.
We have given to this case much reflection, and think we should affirm the action of the judge below, and, so far as the act of 1854, ch. 160, is concerned, for the reasons assigned by him. In addition to the authorities cited in his opinion, we refer to the case of Prout vs. Berry, 2 Gill 147, and to the case of [**31]  Baugher, et al., vs. Nelson, 9 Gill 299.
Whilst we affirm the decision of the circuit court, we wish to be understood as doing so only in deference to past decisions in regard to such acts as that of 1854, ch. 160. Were we called upon for the first time to pronounce on the constitutionality of such legislation, we would not hesitate to decide against it, but we do not feel at liberty to do so when the past history of our jurisprudence shows our impressions have not been shared by those who have gone before us. Conceding, then, the constitutionality of the act of 1854, we do not entertain any doubt that a "satisfactory prima facie" case has been shown for the opening of the decree. The appellee claims payments to the estate of Cramphin of many thousands of dollars, the vouchers of which he avows a readiness to produce when required to do so. The act of Assembly does not impose upon the court, as a duty, primarily to decide, whether or no, the appellee will be able, ultimately, to make out his defences, but only that he shall exhibit a "satisfactory prima facie" case, and this we think he has done.
Decree affirmed, but without costs in this court. 

46 of 47 DOCUMENTS 

THOMAS WARING, Adm'r of DEBORAH WARING, vs. REBECCA EDMONDS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 424; 1857 Md. LEXIS 53 

DECEMBER, 1857, Decided 

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

This was a case of issues sent from the orphans court to the circuit court for Prince George's county. These issues were framed under the act of 1831, ch. 315, sec. 12, upon petition filed by the appellant and answered by the appellee. They raise the question of concealment, and also whether the property referred to (consisting of a bond or sealed note for $ 1000, executed by Washington J. Beall, in favor of the appellant's intestate, and three negro slaves, Louisa, aged about ten years, Maria, aged about four or five years, and Emeline, aged about eight years, also the property of the intestate) was given and delivered by the intestate to her sister, the appellee, as a donatio mortis causa. The allegations of the petition and answer, and also the several issues framed thereon, are fully stated in the opinion of this court.

Exception. At the trial of these issues, evidence was offered, which is fully set out in the opinion of this court, and thereupon the plaintiff asked the court to instruct the jury, that unless they find from the evidence that the note of Washington J. Beall, mentioned in the 2nd and 5th issues,  [**2]  was payable to bearer, or payable to the order of Deborah Waring, and by her endorsed, and was delivered to Mrs. Edmonds by said Deborah, in her life time, their verdict must be for the plaintiff, on said issues. The defendant then asked the following instructions:

1st. If the jury believe the evidence of Dr. Sheehy, then that said evidence was sufficient to warrant them in finding a verdict for the defendant, upon the third issue, as to Louisa.

2nd. If they find, from the evidence, that negroes Maria and Emeline were, during the last illness of Miss Waring, at one of the quarters of Mrs. Beall, and that Miss Waring, during that illness; and in expectation of death, gave said negroes by parol to her sister, Mrs. Edmonds, and requested Mrs. Beall to deliver them, or see that they were delivered, up to her said sister, upon her (Miss Waring's) death, and that Mrs. Beall promised so to do, then that said evidence is sufficient to authorize them to infer, that Miss Waring constituted Mrs. Beall her agent and trustee for Mrs. Edmonds, for the consummation of such parol gift, by delivering to her said sister, Mrs. Edmonds, after her (Miss Waring's) death, the said negroes; and [**3]  if they so find, and further, that in conformity with such request and promise, Mrs. Beall, after the death of Miss Waring, delivered said negroes to Mrs. Edmonds, who took possession of them away, then they must find for the defendant upon the fourth issue.

3rd. If the jury find, from the evidence, that Miss Waring, before her death, and in expectation thereof, had given the note, specified in the issues, into the possession of her sister, Mrs. Edmonds, and that it remained in the possession of Mrs. Edmonds until after the death of Miss Waring, then there is sufficient evidence from which to infer all things necessary to make such delivery valid as a donatio mortis causa, and if they so infer, then they must find for the defendant upon the fifth issue.

4th. If the jury find, from the evidence, that the negroes in question were at Mrs. Beall's, or quarters, and that Miss Waring, in her last illness, had, in expectation of death, made a parol gift of them to her sister, Mrs. Edmonds, and constituted the said Mrs. Beall her agent and trustee for Mrs. Edmonds, to deliver them after her (Miss Waring's) death, and that Mrs. Beall did so deliver them, and that Mrs. Edmonds took [**4]  possession of them, then they must find for the defendant upon the third and fourth issues.

5th. If the jury, upon the evidence detailed in the third and fourth instructions, find for the defendant upon the third, fourth and fifth issues, then upon such evidence, if believed by them, they must find for the defendant upon the first issue.

The court (CRAIN, J.) rejected the plaintiff's prayer, and granted all those of the defendant. To this ruling the plaintiff excepted, and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A party in her last illness, and in expectation of death, gave to her sister, then present, a negro girl, also present, by telling the girl "there is your mistress," (pointing to her sister,) "you must be a good girl, and obedient to her." HELD: that this was sufficient proof, not only of a gift, but of actual delivery, and was a valid donatio mortis causa.

A party in her last illness, and in expectation of death, requested a friend, then present, and who had the care of two negro children belonging to her, to deliver, after her death, these children to her sister, who was also present, stating that she had given them to her, and according to this request, the negroes were, after her death, delivered by the friend to the sister. HELD:

That this also was a valid donatio mortis causa, completed by an effectual delivery, the friend in whose care the negroes were, being the dying person's constituted agent and trustee to make the delivery.

A sealed bond of a third person in favor of the deceased, is the subject of a donatio mortis causa, and may be so disposed of, without an assignment in writing.  

COUNSEL:
Daniel C. Diggs for the appellant:

1st. In the case of Bradley vs. Hunt, 5 G. & J. 60, the Court of Appeals say, "the reasons assigned by Lord Hardwicke, in Snellgrove vs. Bailey, 3 Atk., 214, for his decision, that a bond is the subject of a donatio mortis causa, do not exist here." Since that decision, there has been no case in this State in which this point has been expressly decided. In Hebb vs. Hebb, 5 Gill 506, the court decided that there was no proof of the delivery of the bonds as a donatio mortis causa, even if they were the subjects of such a gift, but they do not decide that they were the subjects of such a gift. There is the same defect in the [**5]  proof in this case, in reference to the delivery of this bond; it is only of what the intestate said she had done at some previous time; that she had given--when or how long previous to her last illness, non constat--this bond to her sister. See also, on this point, 1 Bligh., 524, Duffield vs. Elwes. It is, therefore, insisted, that the prayers in reference to this bond, on the part of the defendant, should have been rejected, and that on the part of the plaintiff granted.

2nd. Neither was there sufficient proof of the delivery of the negroes as a donatio mortis causa. As to what will constitute such a gift, see 1 Wms. Exc'rs, 498; 5 Gill 509, Hebb vs. Hebb. As to what delivery is necessary, see 5 Gill 461, Anderson & Worthington vs. Hammond. The proof here makes out no such delivery as is necessary to perfect such a gift. Two of the negroes were not in the possession of the intestate, and, therefore, could not be delivered, for there can be no such thing as a constructive delivery in such a case; it must accompany the gift. The defendant's prayers do not state the law correctly, and, besides, are not sustained by the proof, and should, therefore, have been rejected.

Oliver [**6]  Miller and Saml. H. Berry for the appellee:

1st. The legal proposition asserted by the plaintiff's prayer is, that a bond cannot be the subject of a donatio mortis causa, the only authority for which is, the doubt expressed in the case of Bradley vs. Hunt, 5 G. & J. 60, whether the distinction, admitted to be the law of England, between a bond and a promissory note to order, not endorsed, prevails in this State. The court expresses no opinion upon the subject, but say they will determine the question when it shall arise. In the subsequent case of Hebb vs. Hebb, 5 Gill 506, the question did arise, being a controversy in reference to bonds alone, and though the case of Bradley vs. Hunt is there referred to on other points, nothing is said about this doubt, which, had the court adopted it, would have disposed of the case. By deciding that case upon the insufficiency of the evidence, the court admit, by the strongest implication, that had the evidence been sufficient on the point of delivery, the bonds would have passed as valid gifts. That a sealed bond or note is the subject of such a gift, is fully sustained by the authorities. 3 Atk., 214, Snellgrove vs. Bailey. 2 Ves.  [**7]  , Sen., 431, Ward vs. Turner. 3 Madd. Ch. Rep., 102, Gardner vs. Parker. 1 Bligh., 497, Duffield vs. Elwes. 3 Binney, 366, Wells vs. Tucker.

2nd. That the testimony fully sustains the gift and delivery of the negro Louisa, is, we think, sustained by all the authorities. 3 H. & J. 493, Sprigg vs. Negro Presley. In regard to the other negroes, we insist that the prayers on the part of the defendant correctly announce the law upon the subject of such gifts; that delivery need not be directly to the donee, but must be according to the manner in which the particular thing is susceptible of being delivered; that delivery to an agent or trustee for the donee, or constituting a party in whose possession the thing is, as agent or trustee to make such delivery, is just as valid and effectual as delivery directly to the donee himself; and that such a gift and delivery need not be proved by witnesses who actually saw the gift made and the delivery accomplished, but may be inferred from facts and circumstances. 2 G. & J. 208, Pennington vs. Gittings. 5 G. & J. 54, Bradley vs. Hunt. 5 Gill 500, Hebb vs. Hebb. 6 Md. 274, Cox vs. Sprigg. 3 Md. Ch. Dec., 266, Hitch vs. Davis.  [**8]  3 H. & J. 493, Sprigg vs. Negro Presley. 3 Gill 278, Isaac vs. Williams. 5 Gill 449, Worthington vs. Shipley. 5 Gill 461, Anderson vs. Hammond. 4 Cushing, 87, Sessions vs. Moseley. 10 Johns., 302, Grangiac vs. Arden.

3rd. The above positions assume that all these issues were properly framed, but it is now insisted that the three last were mere nullities, because the orphans court had no jurisdiction to try a question of title to personal property between an administrator and a third party, not claiming as legatee or distributee, but by a title altogether paramount, the testamentary system. The act of 1831, ch. 315, sec. 12, authorizes issues to try the question of concealment only, not of title, and we insist the orphans court had no jurisdiction to try a question of title like this. 9 Gill 480, Spencer vs. Ragan.

4th. But should the court consider the several prayers in this case, and find defects in any one of them, it will not reverse as to any issue except that affected by the erroneous prayer. The practice in case of issues, is entirely different from that in cases to be followed by judgments. In the latter the appeal is from the judgment as an entirety,  [**9]  whilst in the former the appeal, under the act of 1832, ch. 208, is from the rulings of the court upon the several propositions presented. In this case there are three distinct parcels of property, about which distinct issues are framed, and there are separate and distinct findings of the jury upon each issue. The finding upon any one issue will not, therefore, be disturbed by an erroneous instruction given upon a prayer relating solely to another and distinct issue. For instance, if the court should be of opinion that the law was with the plaintiff as to the bond, and with the defendant as to the negroes, they will only reverse the findings upon the issues relating to the bond, and leave those as to the negroes to stand, and be certified to the orphans court, and so in regard to the negro Louisa and the other two, whose cases depend on different facts and distinct issues.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*429]  LE GRAND, C. J., delivered the opinion of this court.
This is a case of issues sent from the orphans court to the circuit court for Prince George's county. The record shows that the appellant filed his petition [**10]  in the orphans court, alleging that he was the brother of his intestate, who died possessed of certain negroes, and a sealed note for $ 1000, executed in her favor by one Washington J. Beall, and that the appellee "hath concealed, and doth conceal," three negroes, viz., 

 [*430]  Louisa, Maria, and Emeline, and the sealed note for $ 1000. The appellee answered, by admitting that the intestate was, just before her death, seized and possessed of the property mentioned in the petition, but "denies that she does now, or ever has, concealed any property or chose in action," and "claims title" to the whole of said property, as a bona fide gift from the intestate, by virtue of which she took said negroes and bond, or chose in action, and now is, and has been, in the possession thereof. The answer further states the circumstances under which the gift was made, claiming it to be a case of donatio mortis causa. On the coming in of this answer, on application, issues, five in number, were framed, and sent to the circuit court for trial. It is from the ruling of the circuit court, on said trial, that this appeal is taken.
The 1st issue propounded the inquiry, whether the appellee [**11]  concealed the negroes? The 2nd, whether she has concealed the sealed note of $ 1000? The 3rd, whether the intestate did give to the appellee the negro girl, Louisa, as a donatio mortis causa? The 4th, whether the intestate did give to the appellee the negro girls, Maria and Emeline, as a donatio mortis causa? And the 5th, whether the intestate did give to the appellee the sealed note for $ 1000 as a donatio mortis causa?
At the trial, it was proven that Miss Deborah Waring was the companion and house-keeper of Mrs. Martha Beall, at whose house she died, and that she was possessed of the property mentioned in the issues. It was also shown, that Miss Waring had great attachment to her sister, Mrs. Edmonds, the appellee, and that the latter had been attentive on more occasions than one, when Miss Waring was sick, whilst her other relatives failed altogether to visit her. On this point, Miss Elizabeth Johns testifies, "that she had not known any of the other brothers and sisters, or relations of Miss Waring, ever to visit her during her life; she saw her brother (the present plaintiff) at her funeral. That she had often heard Miss D. Waring speak of her sister, Mrs. Edmonds,  [**12]  affectionately; said she had been a mother to her, and she was almost a stranger to her other relations; and at her death she wished her sister to have all her property. That in her last illness, 

 [*431]  seeming conscious of her condition, Miss Waring sent for witness and Mrs. Martha Bell, to her sick room, and then said, 'Cousin Martha, I have three servants, I wish them given to my sister Rebecca, (Mrs. Edmonds,) and the note I hold of Washington Beall's; I wish also given to her every thing that I have. Cousin Martha, I wish you to see that she gets them.' Louisa, who is about ten years of age, was in the room; she pointed to her, and said, 'You will see that my sister has her.'" She further testified, that at the time of this conversation, the other negroes, who were small children, were at the quarters, on the plantation. She requested Mrs. Mary Beall, at her death, to deliver them to her sister, Mrs. Edmonds, and tried to impress on her mind that such was her wish. Mrs. Beall promised she would do so at the risk of her life. Mrs. Beall delivered the negroes, after Miss Waring's death, to Mrs. Edmonds, who carried them to Baltimore. Mrs. Beall proves that she was with Miss [**13]  Waring for six weeks before her death, and that, for several weeks prior to that event, Mrs. Edmonds was in attendance upon her. She continues thus, "I heard her say that she had given her sister the note of Washington Beall, the three negroes named in these issues, and all the other things she owned. She pointed to the girl Louisa, who was in the room; she requested me to see that she (her sister) had this property. She said, I have given the note to my sister, (Mrs. Edmonds.) I asked Mrs. Edmonds where the note was? She said, she had it." "This conversation took place about 10 o'clock in the morning; and she, Miss Waring, died about the same time that night."
The attending physician, Dr. Sheehy, proved that he was with her during her last illness; that she was perfectly conscious of her situation; that about a week or ten days before her death, he make known to her her approaching end, and suggested to her to make disposition of her property by will, to which she answered, "You know, Doctor, I cannot use my hand; it is paralyzed, I could not write my name." She then asked him if she could not give her sister, Mrs. Rebecca Edmonds, her property, in the presence of witnesses?  [**14]  I answered, yes. She then said, I have given my sister (Mrs. 

 [*432]  Edmonds) my three negroes. Mrs. Edmonds was then in the room, and the negro girl Louisa; and Miss Deborah Waring told Louisa, "There is your mistress, (pointing to Mrs. Edmonds,) you must be a good girl, and obedient to her." She sent for Mrs. Mary Beall, and requested her, after her death, to deliver the negroes to Mrs. Edmonds, who was very attentive to her in sickness. I never saw any of her other connections there during her life.
Whatever doubt there may be in regard to the law of the case, there certainly can be none, in any just mind, as to what was the intention of Miss Waring. If ever the wishes of a party were made manifest, they are in this case; that Mrs. Edmonds was the only person intended by her as the beneficiary of her bounty, we think no one can doubt. If, therefore, she be deprived of it, it must be owing to some stern principle of law which works great hardship in special cases for the sake of the general, public good. Is there any such principle?
So far as the negro Louisa is concerned, the proof is positive of not only a gift, but of actual delivery. The donee, the subject of the gift, [**15]  and the donor being all in each others presence at the time of the transaction. If a negro be the subject of a gift, donatio mortis causa, it is impossible for us to perceive or imagine what defect there was in the transfer of the title to Louisa. We think, also, that the gift of the other slaves was completed by an effectual and perfect delivery. They were referred to specifically, and although not personally present, in addition to the donee, Mrs. Bell was, in whose care they were, and who was most solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and faithfully fulfilled her undertaking. We regard her as the constituted agent and trustee to make the delivery; and we know of nothing to prevent the deceased from so constituting her. See Smith vs. Smith, 2 Strange 935, and cases cited in note (a) to 7th Johnson, 28.
The only remaining question for our consideration is, whether a sealed bond is the subject of a gift donatio mortis causa? If it be, then there is nothing to dispute about, for 

 [*433]  the testimony shows that the bond, in this case, had been given and delivered to the appellee by the [**16]  donor, under the consciousness of her impending dissolution, which actually took place on the same day on which she, for the last time, made the gift and acknowledged the delivery, the bond being then in the possession of the donee. The case of Hebb vs. Hebb, 5 Gill 506, relied upon by the counsel for the appellant, is sufficient to show that it is competent to a person in extremis, by way of donatio mortis causa, to dispose of a bond without an assignment. In that case the gift was held inoperative, because the language of the donor was but a narrative of what he had done a long time previously, when in health. In the case before us, the party was in extremis, unable to write, and fully conscious of her approaching death, declaring the gift and the delivery, and also the open avowal of its acceptance by the donee.
To guard against all misapprehension, hereafter, we add, that we have very serious doubts whether the case be one over which the orphans court had jurisdiction, being a question of title and not of "concealment."
Although the second and fourth instructions given by the court, are not as clear in their expression of the law as they should [**17]  have been, yet we do not perceive the appellant has, in any sense, been prejudiced thereby, and we will not, therefore, reverse the judgment because of such want of precision. We consider the testimony abundantly establishes that the single bill and negroes became the property of the appellee by donatio mortis causa. The gift was perfect at the time it was made, they being in the possession of Mrs. Beall, who was constituted the agent for the delivery. Her acceptance of them, as the bailee of the appellee, was, in law, a sufficient delivery to the latter. The other rulings are unobjectionable.
By authority of the 3rd section of the act of 1832, ch. 208, this court allow and render costs against appellant, to be recovered and enforced, as in case of costs awarded on appeals from judgments at common law.
Judgment affirmed. 

47 of 47 DOCUMENTS 

JOHN H. SANSBURY vs. CHARLES S. MIDDLETON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 296; 1857 Md. LEXIS 38 

DECEMBER, 1857, Decided 

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

This appeal was taken from an order of the court below, refusing the application of the appellant for a mandamus to compel the appellee to surrender to him the office of clerk of the circuit court for Prince George's county. The facts of the case are fully stated in the opinion of this court, as also in the following opinion of the court below, (CRAIN, J.,) delivered upon passing the order appealed from:

"This is an application for a mandamus by the petitioner against Charles S. Middleton, to obtain possession of the office of clerk of the circuit court for Prince George's county.

"The case has been argued with eminent ability by the counsel engaged for the respective parties, and is now submitted for my decision.

"It appears, from the petition and answer, that Owen Norfolk was elected clerk in November 1851, and died in November 1854; that Edward W. Belt was appointed, by the circuit judge, to the office, and continued to act as clerk of the circuit court for Prince George's county, until the November election 1855, when Charles S. Middleton, the respondent, was elected, by the people of Prince George's county,  [**2]  clerk, and in pursuance of the constitution, was commissioned and qualified as such, and is now in possession of the office, claiming to hold the same for six years from his election. At the last November election, John H. Sansbury was elected clerk, and he now claims possession of the office, alleging that he has complied with the requisites of the constitution, by giving bond, and taking and subscribing the oath, as prescribed by the constitution, and invokes the aid and power of this court to obtain possession of it.

"To settle this controversy and adjudicate the conflicting claims of the parties, it now devolves on this court to give a construction of the constitution of the State, in reference to the tenure of office of the clerk of the circuit court of this county. The terms of the constitution which are to control this question, are to be found in the 14th section of the 4th article, and this is the only clause directly bearing on the question. By the 14th section it is provided, 'that a clerk shall be elected in each county, and shall hold his office for the term of six years from the time of his election. In case of a vacancy in the office of a clerk, the judge of the [**3]  court of which he was clerk, shall have power to appoint a clerk until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy.' The constitution having conferred on the people the power to elect a clerk, also provided a term of office, which no doubt was thought, by the makers of the constitution, sufficient to ensure fitness, qualification and experience in the incumbent, and, in construing the constitution, we are bound to give it a construction which will subserve, and not defeat, the design and intention of its makers. It does, therefore, appear to me that the judiciary are not authorized to abridge the term for which a clerk is elected, under the constitution, by the people, unless there is some language or provision in the constitution to limit or restrict the term for which he has been elected. I have diligently searched the constitution, and I am unable to find any language or provision limiting or restricting the term of six years, for which, by the 14th section of the 4th article, clerks are elected.

"If it was the intention and design of the makers of the constitution that clerks should be elected for six years, unless [**4]  we can find some language, provision or limitation in the constitution to limit, control or defeat that design and intention, it must be conceded that every clerk elected by the people, must hold his office for six years; but it is contended and insisted upon by the counsel for the petitioner, that the use of the word 'vacancy' was sufficient to limit the term of office, and clearly designates the term for which Charles S. Middleton was elected clerk.

"Can the use of the word vacancy, as employed in the constitution, be sufficient to modify the express language previously used in the same section? The word vacancy, in its usual and accepted sense and meaning, is employed to designate when a place is not filled and supplied, and the makers of the constitution employed it in this section of the constitution merely to designate when the office of clerk was vacant, and the right of the people to elect a successor recurred. Certainly, against the language of the constitution so explicit, and the spirit and intention so manifest, the word vacancy was not designed to apply to the term of office of the incumbent, but to the office itself. For what period was Charles S. Middleton elected?  [**5]  The words of the constitution are imperative. 'The clerk shall hold his office for the term of six years.' What right or power has the judiciary to limit or restrict the term of office, unless the power is found in the constitution? But, looking at the policy of the constitution, I cannot see any good or sufficient reason why a clerk elected to fill a vacancy should not hold his office for six years. The same constituency who elected a clerk for six years in 1851, for the circuit court of Prince George's county, also elected Charles S. Middleton clerk of the same court in 1855; and why should this court decide that Charles S. Middleton was not elected for the constitutional term, when his election was the result of a rightful exercise of the power conferred on the people by the constitution? We are authorized to look at the whole constitution, when we are called on to construe any part of it; and I am confirmed in these views by looking at that part of the constitution in reference to State's Attorneys. By looking at the first and fifth sections of the 5th article of the constitution, I find that State's Attorneys are also elected by the people for four years, and in case of vacancy,  [**6]  the same power is conferred on the circuit judge to appoint until the next election of delegates, when said vacancy shall be filled by the people 'for the residue of the term thus made vacant.' From the language used in this clause of the constitution, it is perfectly clear and satisfactory that the framers of the constitution, when they wished and designed to limit and restrict the term of office, used apt and appropriate language for the purpose, and did not do so by implication. They expressly say, for the residue of the term. That is the language used to limit the term of office of State's Attorney. We find no such limitation on the clerk; and reasoning from analogy, we must conclude that they did not intend or design any such limitation. The court, during the argument of this cause, was referred to the case of Marshall vs. Harwood, 5 Md. 423. I have carefully examined that case, and I think it fully sustains my views in the case. Bateman had been elected librarian for two years; before the expiration of the two years, he resigned, and the Legislature elected Harwood. It was contended, in the argument of this case, that Harwood was elected for the unexpired term of Bateman,  [**7]  but the court decided that Harwood was elected for two years from the day of his election; and Judge Mason, in delivering the opinion of the court, very justly and properly says: 'Neither the public interest, nor any wise design of the constitution, that we can discover, would be promoted by coupling Mr. Harwood's election with the previous term of Mr. Bateman.'

"It is equally clear, that the election of Middleton as clerk of the circuit court for Prince George's county, for six years, cannot be prejudicial to any interest. It is not violating the rights of the people; it is not enlarging the time beyond the term of six years; it does not lead to any inconvenience, or subject the State or the people of Prince George's county to any loss. With these views, as I have not been able to find any provision or language in the constitution to limit the term of office of clerk of the circuit court to less than six years, and believing that I am gratifying the intention and design of the constitution, by making the term for which Charles S. Middleton was elected, six years, I decide his answer sufficient. The application for a mandamus is therefore refused, and the rule discharged."

From [**8]  this order the applicant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The 14th section of the 4th article of the constitution provides that "There shall be in each county a clerk of the circuit court, who shall be elected" by the people, "and shall hold his office for the term of six years from the time of his election, and until a new election is held," and "in case of a vacancy in the office of a clerk," the judge of the court shall "appoint a clerk until the general election of delegates held next thereafter, when a clerk shall be elected to fill such vacancy." HELD:

That a clerk elected by the people to fill a vacancy under this clause of the constitution, holds his office for six years from the time of his election, and not simply for the unexpired term of his predecessor. 

COUNSEL:
Thos. F. Bowie, Edward W. Belt and Thos. S. Alexander for the appellant:

The question in this case depends upon the true construction of the 14th section of the 4th article of the constitution. In construing this instrument, but little aid can be derived from the peculiar and differing provisions of the constitutions of other States, decisions construing which have been invoked by the appellee. Our constitution must be interpreted by its own provisions, by the intent of its framers, to be gathered from the whole instrument, and according to the rules of construction which are laid down by our own courts. This court has said, our constitution is "not to be interpreted according to the words in particular clauses. The whole must be considered, with a view to ascertain the sense in which the words were employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it: This is unquestionably the correct rule of interpretation." Manly vs. The State, 7 Md. 147. "We think the constitution ought to have a common [**9]  sense interpretation, by which we mean, the sense in which it was understood by those who adopted it." "Although it is a well recognized canon of construction, that where legal terms are used in a statute, they are to receive their technical meaning, unless the contrary plainly appears to have been the intention of the Legislature, the principle, however, does not apply to the interpretation of the organic law, which is to be construed according to the acceptation of those who adopted it, as the supreme rule of conduct, both for officials and individuals." State vs. Mace, 5 Md. 350, 351.

Without going back, therefore, to the definition of "office," or considering what vacancy in an office means, at common law, we must ascertain what was meant and understood by the people, when they adopted this section of our present constitution. The most important changes effected by this instrument, are the vesting in the people the appointing power, and limiting the tenure of all offices to fixed and stated periods. Judges who, by the old constitution, were appointed by the executive, and held their office during good behavior, are now elected by the people, and hold their office for the [**10]  term of ten years. A clerk, in the language of the section under consideration, is elected by the people of the county, and holds his office for the "term of six years from the time of his election, and until a new election is held, and is re-eligible thereto," &c. So with other officers, whose election by the people is provided for; their terms of office are in every case limited and fixed to some prescribed period, either two, four, six or ten years, at the expiration of which, or when, in other words, a vacancy occurred in an office by efflux of time, the people were to fill it by a new election, and the officer so elected holds for the same prescribed constitutional term.

In case of a vacancy in an office by any other mode than by efflux of time, provision is made for filling such vacancy sometimes by a temporary appointment until the general election, and sometimes by an executive appointment for the residue of the constitutional term. It is in this latter sense that the word vacancy is invariably used in the constitution. In every instance it means that portion of the constitutional term of office which is left vacant by the death, resignation, removal or other disqualification [**11]  of the party elected for the prescribed term. It is this which is meant by the word vacancy, as used in the constitution, and when such vacancy is filled, either by an executive appointment or a new election, it is for this unexpired term of office. Such is the case with every officer except that of judge, in which case, by the express provision of the 25th section of article 4, the party elected to fill a vacancy in that office, "shall hold the said office for ten years, according to the provisions of this constitution;" thus clearly showing that where the filling of a vacancy was to continue longer than for the unexpired term, the framers of the constitution were careful so to provide, in unequivocal language. In all other cases the vacancy is to be filled for the residue of the term only, sometimes by express provision to that effect, as in the case of State's Attorneys, (art. 5, sec. 5,) and wreck-master, (art. 7, sec. 11,) and sometimes by necessary implication, from the fact that the elections are to take place every two, four or six years. The present case of clerk comes under this last head. By the section under consideration, the clerk is to be elected for six years, and until [**12]  a new election is held, and he is re-eligible to the office. This implies that there are to be new elections after the expiration of the six years. But by the 24th section of the same article, it is provided, that the "first election for judges, clerks, &c., shall take place, throughout the State, on the first Wednesday of November 1851." Can there be a doubt that, taking these two sections together, it was the design of the framers of the constitution that there should be a new election for clerks, throughout the State, on the first Wednesday of November 1857, and so every six years thereafter, so long as the constitution shall continue in existence? Have they not in effect said so, as plainly as if they had said in this, as they have in some other cases, that the election shall take place every six years?

It is conceded that if the section had said, 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 power to appoint a clerk to fill such vacancy," that the appointee would hold only for the unexpired term. Why? Because the word vacancy would then mean only the unexpired constitutional term of office. But how [**13]  is the meaning of this word changed by the fact that the people are to fill the vacancy, instead of the judge? It is surely just as competent for the constitution to limit and restrict the effect of an election by the people, as it is to do so in case of an appointment by a judge. Why, in the one case, should vacancy mean an entirely different thing from what it does in the other?

But, again, our construction is sanctioned by the great and controling policy of the instrument to preserve uniformity in elections to all offices, and to avoid special elections in different counties at different times. 2 Vol. of Debates, 486, 700. It was designed that the elections for all officers should be uniform throughout the State. The harmony of the system would be invaded by the opposite construction; for under it you will have a clerk in one county whose office will expire at a different period from that of others, and, in course of time, there may be clerks in no two counties whose terms of office will expire at the same time. This will give rise to special elections in different counties, which was the very thing the framers of the constitution were careful to guard against in every instance,  [**14]  except that of judges.

Finally, that ours is the sense in which the people who adopted the constitution understood this section, is manifest from the fact that the people of the county nominated candidates, held an election, voted for, and elected the appellant to this office on the first Wednesday of November 1857. It is also further manifest from the fact that the executive, whose duty it is to issue commissions to these officers, gave a commission to the appellee "to hold said office until he should be discharged therefrom," &c., whilst that to the appellant is "to hold said office of clerk for six years from the time of his election, or until he should be discharged therefrom," &c., that the governor understood and interpreted the section in question as we do.

We, therefore, insist that the appellee was entitled to hold the office, by virtue of his election, on the 5th of November 1855, only for the residue of the constitutional term of six years, made vacant by the death of Mr. Norfolk, and that the election of the appellant, on the 4th of November 1857, was constitutional and valid, and he is entitled to the writ applied for in this case.

Daniel Clarke and Thomas [**15]  G. Pratt for the appellee.

This case is governed by the true construction of the 14th section of the 4th article of the constitution. This section establishes:--1st. The office. 2nd. The mode of appointment. 3rd. The term of office. 4th. Provides for removal for certain causes on conviction in a court of law. And 5th. Fixes in its last clause the mode and time of filling vacancies in the office. Section 16th of article 4, prescribes the powers and duties of the officer.

It is insisted, that the term of office being fixed by the first clause of the 14th section, at "six years from the time of election, and until a new election is held," every clerk elected by the people holds his office for that term, unless the last clause of the section can be construed as imposing a limitation upon the term of a clerk elected to fill a vacancy, and restricts it to the residue of the term of the former incumbent. Does the last clause so limit the term of office?

To arrive at the exact meaning of this clause, we propose to make several inquiries. What is an office? What is a vacancy in an office? What is the meaning, ex vi termini, at common law, of "vacancy?" Has "vacancy" when used [**16]  at common law relation to the office or to the term of office? An office is "a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging," or it is "that function by virtue of which a man hath some employment in the affairs of another." 2 Bl. Com., 36. 2 Burrill Law Dict. Title Office. 20 Johns., 493. 2 Jacob Law Dict., Title Office.

Offices are divided into public and private. The office, which is thus defined, and is the principal, must be distinguished from its mere incidents, which are:

1st. Tenure; the manner of holding.

2nd. Powers and duties which are fixed by the law creating the office, or added subsequently, or attached to the office by prescription.

3rd. Term; the period of holding, or the estate which the incumbent takes. 4th. Emoluments and fees, which constitute the compensation for the service rendered.

A vacancy exists in an office whenever the office is not filled, when it is destitute of an incumbent, and there is no officer to officiate and exercise the right and function. Reason alone would conclude, that when the right, which is the office, ceased to exist so far as the incumbent is concerned,  [**17]  being the principal, all the incidents which attached to the office of the incumbent must end.

At common law the King was the universal officer, the source of all power, and the disposer of offices. 2 Jacob's Law Dict., Title King. Public offices were granted by the King for life conditioned on good behavior, or durante bene placito, and no public office could be granted for years or a term. 2 Jacob Law Dict., Title Office. 9 Coke, 97. A vacancy might occur in a public office, or the office might cease to be filled, by the King's withdrawing his good pleasure, which in some cases was the tenure, by death, by resignation, by abuser, by non-user, by refusal, or by the acceptance of an office incompatible with the one first held. These constitute all the modes in which vacancies could arise at common law. Abuser, non-user, and refusal, worked a forfeiture of the office to the King, and upon the occurrence of the other contingencies the office reverted to the King. A vacancy in the term of office of a public officer could not exist therefore at common law, there being no term attached to the office, and vacancy, ex vi termini, could only mean vacancy in the office. See People vs.  [**18]  Green, 2 Wend., 266.

In this country, written constitutions exist in all of the States, and they can change the rule of the common law which made estates for years descend, which was one of the reasons why public offices could not be granted for years. By the provisions of the constitutions of most of our States, public offices are granted for a term of years, and they are generally elective. 3 Kent., 454. But it is never held that the officer takes an estate in them, which attaches to him after he has ceased to be officer, or that the estate descends to his executor. The term for which the office is conferred is the estate which the officer takes. 2 Bl. Com., 144. Whenever death, or resignation, or removal for malfeasance, may take place, the estate ceases, the term is gone, and the office reverts, as at common law to the King, so here, to the sovereign people, or to the appointing power, which the people by constitutional provision may constitute. When filled the constitution may limit the term of the new incumbent to the residue of the unexpired term of the former incumbent, by either express provision or clear and manifest intent. But vacancy, ex vi termini, at common law,  [**19]  meaning vacancy in the office and not in the term, in construing the constitutions of the different States, the common law acceptation must be given to them, in the absence of an express provision to the contrary, or a clear intent manifested either by the context or the general policy of the constitution, that it should receive a different meaning, and here, under our constitution, we insist, that every vacancy in the office of clerk, throws back upon the people the right to fill the office, and when so filled the person elected will have the right to hold for the constitutional period of six years. Dwarris on Statutes, 43. Hughes vs. Buckingham, 5 Sm. & Mar., 632. Banton vs. Wilson, 4 Texas, 400. People vs. Green, 2 Wend., 266. People vs. Coutant, 11 Wend., 132, 511. State vs. Hutson, 1 McCord, 240. State vs. McClintock, 1 McCord, 245. Powers vs. Hurst, 2 Humph. (Tenn. Rep.,) 24. Brewer vs. Davis, 9 Hump., 208. When vacancy, even in its common acceptation, may refer either to the office or the term, no one can affirm that the last clause of this 14th section, is an express provision that the clerk elected to fill "such vacancy," shall hold only for the residue of the term. The clause [**20]  first speaks of vacancy in the office, and says, a clerk shall be elected to fill "such vacancy." The "such vacancy," must have relation to something which has preceded, viz., "vacancy in the office," and hence the constitution itself, in this very clause, shows in what sense vacancy was used. The principle of construction however, established by the preceding authorities, is conclusive in favor of the appellee's right.

The intention of the last clause, was not to restrict the effect of the exercise of their constitutional right of election by the people, to a less period than that prescribed by the first clause, namely six years, but was inserted in the constitution to prevent the necessity of an earlier election to fill the office, than that regularly to be held for the election of delegates, and for that reason gave the judge the power to appoint until the next general election of delegates, and then prescribes the time when the election shall be held, to fill the vacant office which had reverted to the people. See Proceedings of Convention, 2 Vol., 700.

What reason can be adduced, why an election by the people at one time, should entitle the incumbent to hold for one [**21]  term, and at another time for another and different term? Why was not the sovereign power, the people, just as competent on November 7th, 1855, to elect a clerk for six years, as on November 5th, 1851, or November 4th, 1857? No reason can be advanced why, the appointing power being the same in each case, the term should differ. Each appointment by election is an expression of the will of the people, and the same consequences should attach in every case where that sovereign power has been exercised.

But it has been argued, that in construing any portion of the constitution, the whole instrument must be considered together, and its general intent and policy must control the meaning of a particular clause or section, (Manly vs. State, 7 Md. 135; State vs. Mace, 5 Md. 337,) that it was the policy of the constitution to establish a uniform system of elections, and to vacate at one and the same time, either every two, four or six years, as the case may be, throughout the whole State all offices of the same character, and to hold that the appellee was elected for six years, from November 7th, 1855, would destroy the harmony of that system which the constitution contemplated establishing.  [**22]  We deny that the constitution, considered in all its parts, manifests such an intent or general policy.

The clauses of the constitution applicable to the various officers and their terms, may be divided into four classes.

Class first. In which the term of office is fixed, provision is made for filling vacancies, and the provision expressly limits the term of office to the residue of the unexpired term. Art. 2nd, sections 1, 7, (Governor.) Art. 3rd, sections 2, 4, 29, (Senators and Delegates.) Art. 4th, sections 17, 26, (Judges of the Orphans courts.) Art. 4th, section 19, (Justices and Constables.) Art. 5th, sections 1, 5, (State's Attorney.) Art. 6th, section 1, (Comptroller and Treasurer.) Art. 7th, section 3, (Commissioners of Public Works.) Art. 7th, section 10, (Surveyor.) Art. 7th, section 11, (Wreckmaster.)

Class second. Where the term is fixed, a provision exists for filling the office in case of vacancies, and when filled that it shall be for the full term. Art. 4th, sections 4, 9, 25, (Judges.)

Class third. In which the term is fixed, and no provision is made for filling vacancies. Art. 4th, section 3, (Clerk of Court of Appeals.) Art. 7th, section 4,  [**23]  (Lottery Commissioners.) Art. 7th, section 6, (Commissioner of Land Office.) Art. 7th, section 7, (Librarian.) Marshall vs. Harwood, 5 Md. 423. Art. 7th, section 8, (County Commissioners.)

Class fourth. Art. 4th, section 14, (Clerks.) And Art. 4th, section 18, (Registers.) In which the provisions are identical.

The constitution shows, that when its object was to limit the term of an officer, appointed or elected by the people to fill a vacancy to the residue of the unexpired term, it knew well how to express that intent, in clear and unambiguous words, and its failure so to limit the term by express provision in the other three classes of officers, negatives the presumption of such an intent. Expressio unius, est exclusio alterius. The appellee's construction of the constitution, does not create special elections or alter the day of election as fixed by the constitution.

The provision in regard to most of the officers in the first class, must be accounted for by other considerations than the establishment of a general policy, to confine the term of officers chosen to fill vacancies to the residue of the unexpired term. The Governor elected by the Legislature to fill [**24]  a vacancy, serves only for the residue of the term, because otherwise the system of gubernatorial districts would be deranged. The Senator elected to fill a vacancy, if he served for the full term, would be transferred from one class to another, and so the classification would be defeated. The policy of districts, applies to the case of commissioners of public works. Judges of the orphans courts, justices and constables, comptroller and treasurer, surveyor and wreckmaster, are not elected by the people in case of a vacancy, but are appointed by some other power, and so do not conflict with the position contended for, that when a vacancy is filled by the people it is for the constitutional term. The State's Attorney is elected by the people, in case of a vacancy, and holds only for the residue of the unexpired term by express provision. If the same rule had been intended to be applied to clerks and registers, why was not the express provision introduced in their case, as in that of State's Attorney? The form of the commission cannot affect the term of office of the appellee. The commission is the mere evidence of the appointment, and the election the essence. The commission however [**25]  is so worded, as carefully to avoid any executive interpretation of the last clause of section 14th, art. 4. Marbury vs. Madison, 1 Cranch, 157. Johnston vs. Wilson, 2 New Hamp., 202. Jeter vs. State, 1 McCord, 233. State vs. Lyles, 1 McCord, 238. Hill vs. State, 1 Ala., 559. Wammack vs. Holloway, 2 Ala., 31. Low vs. Towns, 8 Georgia, 360.

But if the appellee was only elected to fill the vacancy for the residue of the unexpired term, he is entitled to hold the office until a successor is constitutionally elected and qualified. The constitution contains no provision fixing the time when any election of clerks shall be held, except article 4th, section 24, which only appoints the time when the first election shall be held.

It is not denied, that the constitution contemplated subsequent elections of clerks, &c. By article 10, section 6, the Legislature shall have power to regulate, by law, all matters which relate to the judges, time, place and manner of holding elections in this State, and of making returns thereof. The constitution fixes the time of the first election, and why was this power conferred upon the Legislature, unless the constitution contemplated that some further [**26]  action on the part of the Legislature would be necessary in relation to subsequent elections? Under this section, the Legislature could not change the day of election from the first Wednesday in November, but they could make provision for its being legally, in all respects, held upon that day. No legal notice was given by the sheriff, because by article 10, section 9, he has only power "to give notice of the several elections authorized by this constitution." Courts are constituted to interpret not to make constitutions, and mere considerations of inconvenience must not override wise rules of constitutional interpretation. Where a time is fixed for doing an act by the constitution, and no other time is fixed, the act can only be done at the specified time. Opinions of the Justices, 6 Shepley, 459. The Legislature can apply the remedy. But if the constitution confers authority by implication, to hold elections, it is only in those cases where the office is vacant at the time the election is held. Mr. Norfolk's term would not have expired until the 5th of November 1857, and the appellee filled the office therefore when the appellant was elected on the 4th of November 1857. The six years [**27]  fixed as the term of office of clerks, in the 14th section, of the 4th article, does not mean from the first Wednesday in November until the first Wednesday in November, six years thereafter. It provides that the clerk shall hold for "the term of six years from the time of his election, and until a new election is held." Why were the words, "until a new election is held," added, if the constitution intended the six years should mean until the first Wednesday in November, six years thereafter? They would be surplussage. The clerk is to hold for six years from the time of his election, and the words, "until a new election is held," were inserted to cover those cases where the first Wednesday in November should fall upon some day of the month subsequent to the expiration of six years from the time of his election.

It is competent for the Legislature to provide, that an election to fill an office, not vacant at the time, shall be valid, and that the person so elected shall enter upon the office when the former term has expired, and the office becomes vacant.

In the case of Marshall vs. Harwood, 5 Md. 423, the Court of Appeals decided, that the election of Marshall before [**28]  the expiration of Harwood's term, was valid, and that he would enter upon the office when Harwood's term expired. But we insist, that the election of Marshall by the Legislature, in pursuance of a joint resolution, was equivalent to an act declaring such election valid; a power which is not denied to the Legislature. But in this case no action on the part of the Legislature is shown, and we submit, that an appointment or election to fill an office in which no vacancy exists at the time, independent of constitutional or legislative provision, is a nullity and void. Watkins vs. Watkins, 2 Md. 341, 11 Wend., 132, 511, People vs. Coutant. 3 J. J. Marshall, 401, Taylor vs. Commonwealth. 7 Wend., 493, People vs. Brown.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*312]  BARTOL, J., delivered the opinion of this court.
This is an appeal from an order of the court below, refusing an application of the appellant, for a mandamus to compel the appellee to surrender to him the office of clerk of the circuit court for Prince George's county.
The record shows, that on the 5th day of November 1851, Owen Norfolk was elected to said office;  [**29]  he died on the 24th day of November 1854, and, in pursuance of the 14th section of the 4th article of the constitution, Edward W. Belt was, by the judge of said court, appointed clerk "until the general election of delegates held next thereafter." At said election, held on the 7th day of November 1855, the appellee, Charles Middleton, was elected by the people to said office, and being duly commissioned and qualified, entered upon the discharge of the duties of the office, which duties he has continued ever since to discharge, and is now in possession of said office.
It further appears, that, at the general election of delegates, held on the 4th day of November 1857, the appellant became a candidate for said office, and having received a majority of the votes at said election, was commissioned by the governor, and has duly qualified.
Upon this statement of facts, the question presented for the decision of this court is, whether the appellee is entitled to hold the office of clerk, by virtue of his election in November 1855, for "the term of six years from the time of his election, and until a new election is held;" or only for the residue of the original term of six years,  [**30]  for which Owen Norfolk was elected in November 1851? The determination of this question depends upon the true construction of the 14th section of the 4th article of the constitution.
That section, so far as it is material to this question, is in these words: "There shall be in each county a clerk of the circuit court, who shall be elected by the qualified voters of each county, and the person receiving the greatest number of votes, shall be declared and returned duly elected clerk of said circuit court for the said county, and shall hold his office for the term of six years from the time of his election, and until a new election is held." ****

 [*313]  "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."
By the express words of the first clause of this section, the term of office of a clerk to be elected by the people, is declared to be "six years from the time of his election, and until a new election is held." This applies not merely to the officer chosen at the first [**31]  election, but to every one who is legally elected by the people afterwards; and is conclusive of the question before us, unless there be something found in the same section, or in some other part of the constitution, which limits the term of such officer.
This limitation, it has been contended, is to be found in the latter clause of the section which provides for a case of vacancy in the office, and after authorizing a temporary appointment by the court, to continue till the next general election of delegates, directs that a clerk shall then be elected "to fill such vacancy." The argument on the part of the appellant, is, that the use of the term vacancy, necessarily supposes an unexpired term; and that to fill such vacancy, without other words, imports the filling of the office for the residue of such term. This construction is not warranted either by the words of the section, or by any general and prevailing intent, to be discovered in any other part of the constitution.
It is true that the word vacancy, when used in written constitutions with reference to a public officer, sometimes signifies an unexpired term; but that is not necessarily so. It often relates merely to [**32]  the office, without reference to the term; and, in this case, the very words of the section under consideration, so limit and define it. The case provided for, is a vacancy in the office of clerk, and the election is to fill such vacancy. What vacancy? Clearly in the office, not in the term.
The correctness of this construction, sufficiently obvious from the words of the section itself, is placed beyond all doubt or difficulty, when we examine the other parts of the constitution. Wherever provision is made for filling a vacancy in an 

 [*314]  office, for the residue of an unexpired term only, appropriate words are used to express that intention, and the absence of any such words in the latter clause of the 14th section of the 4th article, is a plain indication of the intention of the framers of the instrument, that whenever a vacancy in the office of clerk is filled by a popular election, the person so elected shall hold for the whole term of six years, as fixed in the constitution. This view is sanctioned by precedent and authority. In the constitution of New York was the following clause: "Sheriffs and clerks of counties, including the register and clerk of the [**33]  city and county of New York, shall be chosen by the electors of the respective counties once in every three years, and as often as vacancies shall happen: and the governor may remove any such sheriff, clerk, or register, at any time within the three years for which he shall be elected," &c.
Under this clause a sheriff was elected to fill a vacancy, and the supreme court of New York decided that the sheriff so elected held for the full term of three years.  The People vs. Green, 2 Wend. 266. In that case, as in this, it was argued that the election to fill a vacancy necessarily imported a tenure for an unexpired term. But the Hon. Wm. L. Marcy, then judge, who delivered the opinion of the court, uses the following language: "Green was elected, as I understand the provision, to fill the vacant office, and not merely to serve out the vacant term of his predecessor. I am inclined to think that a diversity of opinion on this subject has arisen from the different applications of the term 'vacancies,' in the section of the constitution which we are considering. It has been sometimes applied to the office as contradistinguished from the term of service, and at others [**34]  to the term of the office. I understand it is applicable to the office alone. When Green came into the office, he took it with all the rights, powers and incidents belonging to it, under any circumstances, one of which was a tenure of three years."
That case is very analogous to the one before us, and the language of the learned judge, which we have quoted, applies with equal force to this case as to the one which he was deciding.

 [*315]  The same provision of the constitution of New York was again brought before the courts of that State for consideration, in the case of The People vs. Coutant, 11 Wend. 132. It was a controversy involving the tenure of office of the register of the city and county of New York, elected to fill a vacancy. The supreme court, Savage, Chief Justice, delivering the opinion, adhered to the same construction of the constitutional provision. This last case was taken, by appeal, to the court of errors, and after full argument and mature consideration, was affirmed, Chancellor Walworth delivering an able and lucid opinion.  11 Wend. 511. With reference to that case it may be remarked, that the tenure or term of office [**35]  of the register was not defined in express language by the constitution, but the court determined that by implication it was a term for three years; which determination, while it governed their decision of the question involved, assimilates the case to this, except that here the official term of the clerk is declared, by express words, to be for six years.
In the case of Hughes vs. Buckingham, decided by the high court of errors and appeals of Mississippi, 5 Sm. & Mar. 632, it was held, that the clerk of the superior court of chancery, chosen to fill a vacancy, was entitled to hold the office for the whole term of four years, that having been fixed, by a general law of the State, as the term of all offices not otherwise provided for.
By the constitution of Tennessee, art. 7, sec. 1, it was provided, "That there shall be elected in each county, by the qualified voters therein, one sheriff, one trustee, and one register; the sheriff and trustee for two years, and the register for four years." In the 2nd section it was provided, that "Should a vacancy occur, subsequent to the election, in the office of sheriff, trustee, or register, it shall be filled by the justices, *  [**36]  *** and the person so appointed shall continue in office until his successor shall be elected and qualified; and such office shall be filled, by the qualified voters, at the first election for any of the county officers."
Under that provision Evans was elected register in 1836, died on the 4th of April 1837, when Hurst was appointed, by 

 [*316]  the justices, to fill the vacancy in the office of register, and at the first election of county officers thereafter, on the 3rd day of March 1838, was elected by the people. Afterwards, in 1840, at the expiration of the term of four years for which Evans had been elected, Powers was elected, and claimed the office. But the supreme court decided that Hurst was entitled to hold the office for the whole term of four years. 2 Humph. Rep. 24, Powers vs. Hurst.
In the case of Banton vs. Wilson, 4 Tex. 400, it was decided by the supreme court, Hemphill, C. J., delivering the opinion, that where the tenure of an office is fixed, by the constitution, at four years, each succeeding incumbent, although elected to fill a vacancy, is entitled, unless it be otherwise provided in the constitution itself, to hold the office [**37]  for the full period.
These decisions, by distinguished jurists in other States, of cases analogous to the one before us, are strong authorities in support of the views which we have already presented, and sustain the conclusions at which we have arrived from an examination of the provisions of our own constitution, governing the subject. These conclusions are not in conflict with any general or prevailing intent to be found in the instrument, nor are we able to perceive any mischievous consequences or public inconvenience to result from such an interpretation.
It is manifest that the prominent designs of the framers of the constitution were to make the office of clerk, and almost all others, elective, to limit their tenure, and to avoid the necessity for special elections. These designs are all gratified by the construction which we have adopted. The order and harmony of the system is in no respect disturbed. There is nowhere to be found any expression of a purpose that an election for a clerk shall be held at the end of every six years, in all the counties of the State; nor can we perceive any good end that could be subserved by such an interpretation. The plain intent of the [**38]  14th section, is to direct that a vacancy shall be filled temporarily by the court, till the general election, and then that the office shall be filled, by an election, for the constitutional term. The power of the people, at a general election, 

 [*317]  to fill the office whenever it becomes vacant, either by the efflux of time or by other cause, is clearly conferred by the constitution.
In other parts of the constitution provision is made for filling various offices, by election, at regular stated periods of two or four years. In such case appropriate words are used to express such intention. This is the case with the judges of the orphans courts, art. 4, sec. 17, which directs that elections for those officers shall be held in every fourth year, in each county and in the city of Baltimore. When a vacancy in that office occurs, it is filled, under the 26th section of the same article, necessarily for the residue of the term only, although not so expressly declared; because the 26th section must be construed in connection with the 17th section. But no such provision as that contained in the 17th section, is to be found with reference to the office of clerk.
Being of opinion [**39]  that Middleton, the appellee, is entitled to hold the office for the whole constitutional term, from the time of his election in 1855, and that the election of the appellant, in 1857, was unwarranted by the constitution, and void, we affirm the judgment.
Judgment affirmed.