1 of 18 DOCUMENTS 

STATE, use of THE MAYOR & CITY COUNCIL OF BALTIMORE, vs. LAMBERT S. NORWOOD, ELIZABETH SMITH, and J. M. TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 177; 1858 Md. LEXIS 16 

June 24, 1858, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Superior Court of Baltimore city.

This suit was brought on the 5th of May 1854, in the name of the State for the use of the Mayor and City Council of Baltimore, against Lambert S. Norwood and his sureties, upon Norwood's official bond as clerk of the Court of Common Pleas, dated the 29th of November 1851. This bond, which was duly stamped, was given to the State in the penalty of £  5000, and contains, among others, the condition that Norwood, whilst he continues in office, "shall well and faithfully pay over to the treasurer of Maryland, all sums of money received by him for the use of the said State of Maryland, under the provisions of the constitution of the State of Maryland, or of any law now existing, or which may hereafter be passed, in the manner and at the time limited by such acts, without fraud or further delay, and shall well and truly account for the same with the officer or persons authorized to receive the same, and the duties of his office, and all the other duties of his said office by law imposed, legally, duly and faithfully shall discharge, according to law, and the true intent and meaning of the acts of Assembly, in such case made and [**2]  provided."

The declaration did not assign breaches. The defendants pleaded nil debent, upon which issue was joined, and the parties then made the agreement, in regard to waiving errors in pleading and admitting testimony, which is set out in the opinion of this court.

The object of the suit was to recover money which the Mayor and City Council of Baltimore, the equitable plaintiffs who brought the action in the name of the State, alleged to be due to them by Norwood, and for which they insist his aforesaid official bond as clerk is answerable.

In the course of the trial four exceptions were taken to the rulings of the court below, (FRICK, J.,) one by the equitable plaintiffs, and the others by the defendants. These exceptions and all the facts of the case are fully stated in the opinion of this court.

The verdict and judgment were in favor of the plaintiffs for $ 1785.32, with interest and costs, and both parties appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

There is no law requiring the clerk of the Court of Common Pleas to collect or receive for the Mayor and City Council of Baltimore, the five pounds tax on tavern licenses, imposed by the act of 1782, ch. 17, and his official bond, as clerk, is not, therefore, responsible for any sums he may have received on account of such tax.

It is the duty of the clerk of the Court of Common Pleas to collect the tax called "jail fees," imposed by the act of 1827, ch. 117, sec. 2, and his official bond is responsible for any sums he may have received on account of such tax; and the Mayor and City Council of Baltimore are the proper parties to sue his bond therefor, and not the "visitors of the jail of Baltimore city and county," incorporated by the act of 1831, ch. 58.

Any individual or body corporate, interested in a bond given by a public officer to the State, for the faithful discharge of official duties, may institute suit thereon in the name of the State, without authority expressly given for that purpose by the State.

Where, in a suit upon a bond with collateral conditions, the declaration did not assign breaches, and the parties agreed that "errors in pleading are waived, and either party may give in evidence such testimony as might be admissible in any form of pleading," there is no necessity to suggest breaches in the pleadings, or upon the roll, before the bond can be admitted in evidence.  

COUNSEL:
C. J. M. Gwinn, C. McLean and C. H. Pitts for the defendants below:

1st. The question presented by the defendants' first and third prayers, is, whether the Mayor and City Council of Baltimore had a right to use the [**3]  name of the State in entering a suit upon this bond, without authority from the State, even if it were conceded they had an interest in the bond? In the case of McMechen vs. Mayor & C. C. of Balto., 2 H. & J., 41, it will be observed that the bond sued on was one in which the corporation had no direct pecuniary interest, and yet even here the authority of the equitable plaintiff to use the name of the corporation, was held by the court to be intended after verdict, upon the theory that it was not necessary to spread the warrant of attorney to him from the corporation, upon the record. But this case admits that the authority must exist at least by intendment. In a case of the same name, 3 H. & J., 534, the reasoning of the court is not given, but there was proof in the case that the Mayor had given instructions to the register to deliver copies of the bond put in suit to any person having claims against the principal upon it. So that this case also does not show that authority to sue upon such a bond was not necessary to be given. In the cases of Kiersted, Morrow, and Chamberlain vs. The State, 1 G. & J., 231, the name of the State was used in suits upon the bonds without authority,  [**4]  but, as under all the insolvent laws up to that time, there was no provision made for taking these bonds in the name of the State, and as the State had no interest in them, and its name was used as that of a convenient representative party, it is evident there was no reason for requiring its consent to the use of its name. So, too, in the case of Ing, et al., vs. The State, 8 Md. Rep., 295, the suit was on an appeal bond, in which the State had no interest whatever, but was a nominal and representative obligee alone. These cases do not present the case of a bond made to the State, in which it is directly and pecuniarily interested, and of which it maintains the custody under the law. In such a case, it is essential to the safe maintenance of that priority in the payment of debts which is possessed by the State, (State vs. Bank of Maryland, 6 G. & J., 226,) that no suit should be allowed to be instituted upon any security in which the State is directly interested, without the consent of the State. For the State may have good reasons for holding back from the commencement of suit, but if another party directly or indirectly interested in the bond made to it, and who has not the custody [**5]  of that bond, may nevertheless put it in suit without the consent of the State, the State, as holder and obligee, may often be driven to injudicious haste, in order to avoid losing its priority at common law, or under the act of 1778, ch. 9. The true rule in cases in which the State is interested in the bond made to it as obligee, but which is sought to be put in suit by a private party, in the name of the State to his own use, is given by Chief Justice Marshall, in the case of The Corporation of Washington vs. Young, 10 Wheat., 406, to which the attention of the court is particularly called, because the chief justice speaks of the earlier Maryland cases upon this subject. The rule is this: "No person who is not the proprietor of an obligation, can have a legal right to put it in suit, unless such right be given by the Legislature; and no person can be authorized to use the name of another without his assent, given in fact or by legal intendment." Here the legal intendment after verdict does not exist, because the question of the right to sue is directly raised by the prayers which were rejected by the court.

2nd. That the court erred in admitting the bond in connection with the [**6]  list of jail fees, as evidence of the responsibility of the sureties and principal under the bond. In public bonds of this character, given to the State, but in which another party professes to be interested, and sues in the name of the State, as equitable plaintiff, such equitable plaintiff (the right to sue being conceded) is to "be regarded as the real plaintiff," (8 Md. Rep., 295,) and no evidence is admissible in favor of the claim, therefore, which does not show a right vested in the equitable plaintiff, and a responsibility to such equitable plaintiff on the part of the obligors. It is not enough to show that there is a responsibility to somebody, in order to make the evidence admissible. In this case the right to these jail fees was not legally in the Mayor and City Council of Baltimore, and they had, by law, no right to receive them, and, therefore, the evidence was improperly allowed to be given. The act of 1827, ch. 117, sec. 2, provides that no person shall be allowed to sell liquors by retail, unless he shall pay to the clerk therefor, in addition to the sum required for his license, the further sum of four dollars for every such license, "the said further sum to be applied [**7]  to the payment of the expenses of the jail of the said city and county of Baltimore, so far as the same are chargeable to, and to be borne by, the city of Baltimore." Now the question is, who had the right to receive and apply these jail fees, as indicated in this act, for the act itself is silent on this subject? By the act of 1831, ch. 58, sec. 1, the Visitors of Baltimore city and county jail were instituted a body politic and corporate, with power to exercise all the rights and privileges of a corporate body as fully as any other corporate body could exercise them. By the same act, sec. 15, they were directed to make out an accurate account of all the public money received by them from the register of the city of Baltimore, or from any other source, for the use of the city of Baltimore; and by sec. 13, they are charged with the whole revenue of the jail. The act of 1838, ch. 75, does not change the corporate character, or the duties of this body of visitors. Now, since these visitors exercise a corporate privilege as great as that which is possessed by the city of Baltimore, and are placed by the law exclusively in charge of the revenues appropriated to the use of the city and [**8]  county jail, and since this was a special fund, to be appropriated to the single purpose of these expenses, these visitors ought to have been the equitable plaintiffs, and not the Mayor and City Council of Baltimore; the latter having no other right in regard thereto than the benefit which, under the act of 1827, ch. 117, accrues to them from the appropriation of the sum derived from the liquor license to the partial payment of the expenses which they were liable for on account of said jail. And, generally, it may be said that the securities to this bond "cannot be answerable beyond their engagement," (2 H. & J., 45,) and it is plain that by this bond the engagement is to the State, or its officer, and to none other, and this view excludes the responsibility for those fees on this bond.

3rd. The appeal of the equitable plaintiffs presents the question, whether it was the duty of Norwood, as clerk of the Court of Common Pleas, to collect the money for the ordinary licenses? The first act which relates to licenses for ordinaries, is that of March session, 1780, ch. 24, which makes no provision for the payment of any portion of the fees derived from such licenses to Baltimore town.  [**9]  This act was defective, because it did not determine who were to receive these fees, or to account for them to the State. The act of June 1780, ch. 8, sec. 9, provided for this omission, by making it the duty of the clerks of the county courts to receive and account for the moneys received for ordinary licenses to the State treasury. There was no provision at this time for the payment of any tax or fee on such license to any other than the State. The law of November session, 1782, ch. 17, sec. 1, which was an act for the more effectual paving of the streets of Baltimore town, provided for the levy of several special taxes which were to be appropriated to this purpose. Among these were taxes on riding carriages, wagons, carts, and an additional tax of five pounds on tavern licenses. By the same act, sec. 18, the special commissioners who were incorporated by the 45th section thereof, were given full power to appoint a person or persons, properly qualified, to act in the collection of said taxes, of which this very tax on ordinaries was one, and it is, therefore, manifest that under this law it was not the duty of the clerks of the county courts to receive these taxes, and therefore [**10]  not their duty to receive this tax on ordinaries in their capacity as clerks. There was no omission in this law of care to provide for the proper payment of the moneys thus collected, for the good conduct of these agents is enforced by the same act, secs. 20, 22, 23. There was nothing in this act to prevent the special commissioners from appointing the clerk of the county court their collector, if they saw proper, but it is evident that if they did, he was responsible, under the law, as collector, and not as clerk, for the license money that thus came into his hands. By the act of 1796, ch. 68, erecting Baltimore town into a city, the powers of these special commissioners were vested in the corporation, and from that day to the present time, the law relating to these taxes or ordinary licenses has been left untouched; that is, the Mayor and City Council have the power to appoint a collector for this tax, and to hold him to an accountability, under the law of 1782, ch. 17, but under this law it is not, and when these taxes on ordinaries were received by Norwood, it was not, the province or the duty of Norwood, as clerk of the Court of Common Pleas, (to the clerk of which court came [**11]  in due time the right to issue licenses for ordinaries,) to receive this tax or license for ordinaries. The acts of 1822, ch. 217; 1827, ch. 117; 1831, ch. 298; 1841, ch. 40; 1852, ch. 308; and 1853, ch. 444, leave the state of things as they existed in 1782, unaltered. The corporation has neglected to provide for its own security, and it cannot visit this omission upon the securities to this bond, who are responsible only to the extent of their engagement.

B. C. Presstman and G. L. Dulany for the Mayor and City Council of Baltimore:

The defendants below, by their first exception in this case, object to the ruling of the court below, admitting in evidence the bond sued on, because, as they insist, the name of the State cannot be used by the equitable plaintiff without her consent being given. This position is novel in its character, as the practice of using the name of the State in actions upon public bonds, by the parties interested, has hitherto been unquestioned. The State, by legislation, has guarded herself against the imposition of costs, by requiring "the use" to be entered by the clerk of the court. Act of 1794, ch. 54, sec. 10. The cases of McMechen vs. Mayor & C.  [**12]  C. of Balto., in 2 H. & J., 41, and 3 H. & J., 534, referred to by the defendants' counsel, do not lend any sanction to the denial of this right, but, on the contrary, sustain it, though the arguments of counsel, similar for the most part to those now urged by the defendants, would apply more strongly to actions of the character of those suits, which were brought without authority in the name of the Mayor and City Council of Baltimore, by parties interested in an auctioneer's bond, than to public bonds given to the State. Neither is there much force in the supposition of the defendants, that because the Mayor had, in one of those cases, ordered copies of the bond to be given with a view to suit, that, therefore, the consent of the Mayor and City Council might be assumed by intendment. This is, perhaps, an ingenious and plausible theory, but as the court has not so said in their opinion, and as it does not appear among the points urged by counsel, we do not think it had a controlling influence in the decision pronounced by the court. In truth, had it been necessary to establish the authority or assent of the corporation to the institution of such suit, under the limited powers prescribed [**13]  to the executive officer of the city, his assent, merely, would not have been sufficient.

The defendants, in their second exception, object to the ruling of the court, admitting the bond in connection with the list of jail fees, because, as they contend in argument, the right to these jail fees was not legally in the Mayor and City Council of Baltimore, but was vested in the visitors of Baltimore city and county jail. Although this objection, if sustained, is but of a technical character, and will not defeat substantially the plaintiffs' claim, yet we do not think it entitled to much force. These jail fees being intended to lighten the expenses of the city and county in support of the institution owned jointly by the city and county, and constituting but a small part of such expenses, have been at all times paid into the city treasury directly by the State's officer holding the post of clerk of the City Court of Baltimore, who, prior to the new constitution, which has conferred the power upon the clerk of the Court of Common Pleas to "issue all marriage and other licenses required by law," was authorized to receive this license money. The Mayor and City Council have provided in [**14]  their ordinances for the receipt by the register of all license money, and being clothed with authority to pass all ordinances requisite for the purpose of carrying into effect the powers conferred upon the city, they have enacted ordinances prescribing the mode of appointing visitors to the jail, and the power of removal or substitution of these officers by the Mayor and City Council, has never been questioned, and in all their acts they set forth their agency. See Act of 1838, ch. 75, secs. 1, 2, and Revised Ordinances 1850, No. 8.

The plaintiffs below, in their exception, object to the ruling of the court excluding the testimony by which it was proved that Norwood had received $ 14,613.95 for licenses for ordinaries, and that this sum had not been paid into the city treasury. Now it is conceded by the defendants that the Mayor and City Council of Baltimore are entitled, under the law of 1782, ch. 17, to these taxes on ordinaries, but they insist that if the clerk of the Court of Common Pleas collected them, his sureties are not responsible on his bond. We refer the court to the 4th Art. of the Constitution, sec. 15, in which the authority is given to the clerk of this court [**15]  to issue "all marriage and other licenses required by law," as clearly conferring upon him, alone, the right to receive the money arising from ordinary licenses, and it would not have been competent for the Mayor and City Council of Baltimore to provide for the appointment of any other collector. All acts of Assembly inconsistent with this provision are repealed. Independently of this liability under the constitution, we refer to the case of Laurenson vs. The State, 7 H. & J., 339, as affirming the doctrine that no principal or surety upon a collector's bond can escape from responsibility for moneys collected by the principal, by virtue or color of office.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*185]  ECCLESTON, J., delivered the opinion of this court.
The suit in which these cross-appeals have been taken, was instituted in the Superior court of Baltimore, in the name of the State use of the Mayor and City Council of Baltimore, against Lambert S. Norwood, Elizabeth Smith and Joshua M. Turner, on the 5th of May 1854. The object of the suit was to recover money alleged to be due the equitable plaintiffs, under a bond [**16]  dated the 29th of November 1851, given to the State by Norwood, as clerk of the court of Common Pleas for the city of Baltimore, the penalty of the bond being five thousand pounds.
The declaration is in the form commonly used in suits upon bonds with collateral conditions, when breaches are not assigned by the nar. Neither the original bond nor a copy thereof was filed with the declaration. The defendants pleaded nil debent, to which issue was joined, and the parties made the following agreement:
"It is agreed in this case that errors in pleading are waived, and either party may give in evidence such testimony as might be admissible in any form of pleading, and that a copy of the bond may be offered to have the same effect as if the original was produced, the testimony to be taken subject to exceptions."
At the trial of the cause, the first bill of exceptions was taken by the equitable plaintiffs. They offered in evidence an account 

 [*186]  or list of ordinary licenses, marked and returned to the city register's office by Lambert S. Norwood, clerk of the court of Common Pleas for the city of Baltimore, showing that the amount which he charged as due the city, and remained [**17]  unpaid, from May 1st, 1853, was $ 14.613,95; which list or statement, the parties agreed should be used in lieu of the original lists. And the plaintiffs proved by J. J. Graves, city register, that said account or list was returned by Lambert S. Norwood clerk of the Court of Common Pleas, and that the moneys received by him, as set forth by him in said account, as having been received by him for ordinary licenses, had not been paid to the city treasury. To the admission of which account and evidence the defendants' counsel objected, contending that the plaintiffs had shown no title to said money, and that Norwood as clerk, was not bound to collect and pay over the moneys collected by him for ordinary licenses, which objection the court sustained. And upon this decision the plaintiffs' appeal is based.
They insist upon their right to recover from the defendants, money alleged to have been received by Norwood, as clerk of the Court of Common Pleas, for the use of the city of Baltimore, under the act of November session 1782, ch. 17. This act was passed for the more effectual paving of the streets of Baltimore town, and for other purposes; by which several special taxes were imposed.  [**18]  Among these were taxes on carts, riding horses, billiard tables, &c., and "an additional tax of five pounds annually on tavern licenses."
The 45th section of this act, made the then special commissioners a body corporate, by the name of "Special Commissioners for Baltimore Town." And the 18th section of the same act gave these commissioners "full power to appoint a person or persons properly qualified, to act as collector or collectors of the taxes before mentioned;" the tax on ordinary or tavern licenses being one of those "before mentioned," and not excepted out of the general authority given to such collector when appointed.
This tax and others were likewise authorized to be collected by distress, as may be seen by reference to the act of 1792, ch. 21.

 [*187]  By the law of 1796, ch. 68, Baltimore town was made a city, and all the powers then possessed by the special commissioners were conferred upon the new corporation. By this change, instead of the commissioners the "Mayor and City Council of Baltimore" became authorized to appoint a collector of the five pound and other taxes.
The act of June session 1780, ch. 8, sec. 9, is the first law, which, in terms, directed [**19]  the clerks of the county courts to receive and account for moneys payable for ordinary licenses. The entire amounts to be received for such licenses, were then due to the State alone. Since 1780, different laws in regard to money due the State, for ordinary and other licenses in Baltimore, have made the same payable, at one time, to the clerk of the court of oyer and terminer, afterwards to the clerk of the city court, and then to the clerk of the court of Common Pleas.
The act of 1804, ch. 65, in the latter part of its 4th sec. provides, that the clerk of the court of oyer and terminer, "shall also receive all sums of money payable for any licenses granted in virtue of this act, and account for the same according to law, as the clerk of Baltimore county court is now required to do." We see nothing in this act which imposes any duty upon the clerk of the court of oyer and terminer, in relation to the tax now under consideration; believing, as we do, that it never was made the duty of the clerk of Baltimore county court to collect this tax.
With much care we have examined the laws generally, having any relation to ordinary and other licenses, and particularly those already mentioned,  [**20]  as well as the following: March session 1780, ch. 24, sec. 1; 1791, ch. 58; 1816, ch. 193, sec. 14; 1816, ch. 242; 1822, ch. 217; 1827, ch. 117; 1831, ch. 262; 1831, ch. 298; 1838, ch. 414; special session of March 1841, ch. 40; and 1852, ch. 308, the last clause of section 1.
This examination has not enabled us to find any direction or authority, given in express terms or by necessary implication, to the clerk of Baltimore county court, to the clerk of the Court of Common Pleas, or to the clerk of any other court, to collect or receive this five pound tax. And seeing that the 

 [*188]  act of 1782, ch. 17, provides for its collection by a person or persons to be appointed for that purpose; and the act of 1792, authorises it to be collected by distress; we do not perceive either a necessity, or any authority, for so construing the laws on the subject, as to make it the duty of the clerk of the Court of Common Pleas to receive the tax.
If there was evidence showing that Norwood, whilst clerk of the court, was appointed a collector, as provided for by the act of 1782, such an appointment could not impose upon him any responsibility in his character as clerk; there being no law requiring [**21]  the clerk, as such, to perform the duty. If, therefore, by virtue of any appointment from the Mayor and City Council, or in consequence of any arrangement or understanding between them and Norwood, he has been receiving this tax, he may be personally answerable for the same, but his official bond, as clerk, is not.
Believing these views to be correct, we think the city is not entitled to any portion of the claim relied upon in regard to ordinary licenses, under the act of 1782; consequently the plaintiffs' bill of exceptions shows no error on the part of the court below, and therefore, the decision appealed from by the plaintiffs will be affirmed.
In the further progress of the cause, the defendants took three bills of exceptions. The verdict and judgment being against them they appealed.
From the first of these exceptions it appears, that after giving in evidence the agreement already stated, with relation to waiving errors in pleading, and the admission of such evidence as might be given in any form of pleading, the plaintiffs offered a copy of the bond mentioned in the nar. By the condition of which bond, among other things, it is provided, that Norwood, as clerk of the Court [**22]  of Common Pleas, should well and faithfully pay over to the Treasurer of Maryland, all sums of money received by him for the use of the State of Maryland, under the provisions of the constitution of the said State, or of any law then existing, or which might thereafter be passed in the manner and at the time limited by such acts without fraud or further delay, and should well and truly account for the 

 [*189]  same with the officer, or person or persons authorised to receive the same, and the duties of his office, and all the other duties of his office by law imposed, legally, duly and faithfully should discharge according to law, and the true intent and meaning of the acts of Assembly in such cases made and provided. To the admissibility of this bond the defendants objected, but the court overruled the objection, and they excepted.
The defendants' second bill of exceptions, shows that the plaintiffs offered in evidence the following agreement:
"It is admitted, that by the list of jail fees marked Exhibit No. 1, returned to the city register's office, by Lambert S. Norwood, clerk of the Court of Common Pleas, it appears that the amount which he charges as due the city, and which [**23]  remains unpaid from May 1st, 1853, to June 1st, 1853, is $ 1950.72, and it is agreed that this statement shall be inserted in the record in lieu of the original list."
And the plaintiffs offered evidence by John J. Graves, register of the city, that said account was returned by Lambert S. Norwood, clerk of the Court of Common Pleas for the city, and that the moneys received by him as appears by said account or list, were not paid to the city treasury. To which evidence the defendants objected, but the objection was not sustained by the court.
The defendants then asked three prayers, all of which were refused; upon which action of the court the defendants based their third exception.
The 1st prayer asks the court to instruct the jury, that there is no evidence in this cause to sustain the plaintiffs' right to recover in this suit.
The 2nd is, "that if the jury believe from the evidence, that a judgment has been recovered against the defendants or any of them, on the bond offered in evidence in this suit, then the plaintiff is not entitled to recover in this case, for any sum of money which they may find Lambert S. Norwood received under the act of 1827, ch. 117, sec. 2nd."
And [**24]  the 3rd prayer is, "that upon the pleadings, agreement and evidence in this cause, the plaintiff is not entitled to recover in this suit."

 [*190]  Whilst considering the appeal of the defendants, it must be borne in mind, that in deciding the plaintiffs' appeal, we have said they have no right to recover under the bond in controversy, for any moneys received by Norwood, on account of ordinary licenses. This being so, it follows necessarily, that in regard to questions presented by the defendants' appeal, no claim on account of those licenses can be of any avail to the plaintiffs.
The only claim now to be examined is, how far the bond of the clerk, as such, is answerable for moneys received by him under the act of 1827, ch. 117, sec. 2, for what are usually called "jail fees."
This act directs the sum of twelve dollars to be paid to the clerk of Baltimore city court, for the use of the State, by every person or body corporate, applying for a license to sell goods, wares or merchandize in the city; and it provides, that such license shall not "authorize any person or persons, body or bodies corporate or politic, to sell or barter spirituous or fermented liquor, by retail [**25]  or in quantities less than ten gallons, and not less than a pint, within the city of Baltimore, unless the person or persons, body or bodies corporate or politic, obtaining such license, shall pay to the clerk of Baltimore city court, in addition to the twelve dollars aforesaid, the further sum of four dollars for every such license; the said further sum to be applied to the payment of the expenses of the gaol, of the said city and county of Baltimore, so far as the same are chargeable to, and to be borne by, the city of Baltimore."
As the law directs the four dollars to be paid "to the clerk of Baltimore city court," no question like that, in reference to ordinary licenses, as to who was to collect or receive the same, can here be made. and inasmuch as the duties of that clerk, in regard to such matters, have been transferred to the clerk of the Court of Common Pleas, there can be no doubt but that his official bond is responsible for the jail fees. The defendants however contend, that admitting the bond to be answerable, still the present equitable plaintiffs are not the proper parties to institute the suit; because, if without the express authority of the State, any suit [**26]  upon the bond could be sustained, 

 [*191]  it could only be by making the "visitors of the jail of Baltimore city and county" the equitable plaintiffs. In support of this view, reference has been made to the act of 1831, ch. 58, the first section of which constituted these visitors a body politic and corporate, with "all the powers, authorities and privileges of a corporate body, so far as the same are necessary to a due discharge of their duties, as fully to all intents and purposes as any other corporate body might or could have and exercise." Among the duties and powers prescribed for these visitors by this law, the 13th section provides, that they "shall keep regular books of accounts, in which the whole expenses of the jail, whether for supplies, salaries of officers, repairs or incidentals, shall be distinctly stated, as also all the receipts and expenditures upon the different dockets, in such a manner, as that these accounts may show what is chargeable to Baltimore county, and what chargeable to Baltimore city."
The 16th section enacts, "that the said visitors shall annually make out a full statement of all the public money received by them from the register of the [**27]  city of Baltimore, or from any other source for the use of the city of Baltimore, and the manner in which it has been expended; which statement shall be laid before the Mayor and City Council of Baltimore, together with an estimate of what will be necessary for the following year, the amount of which estimate shall be levied on the property in the city of Baltimore, and paid to the visitors of the jail."
It has been contended by the defendants, that the sections of the law, which have been mentioned, give to these visitors, and not to the Mayor and City Council, the right to demand and receive, directly from the clerk of the Court of Common Pleas, the jail fees made payable under the act of 1827. But we do not consider this a correct view of the subject. When that act was passed the visitors had no existence as a corporation. The Mayor and City Council, however, were then the corporate body, having the control and management of the affairs of the city. And as the law provided, that the fees in dispute should be applied to the payment of the expenses of the jail of the city and county of Baltimore, so far as the same 

 [*192]  were chargeable to, and to be borne by, the city, we [**28]  think the Mayor and City Council then had the right to demand those fees from the clerk, whose duty it was to collect them from persons obtaining licenses. This right has not been transferred to the visitors, by any express language in the act of 1831, or by any necessary implication, so far as we have been able to discover, after a careful examination of its provisions. In reference to money transactions, the principal powers and duties of the visitors seems to be, that they are to estimate what amount it will be necessary for the city to provide for each year on account of jail expenditures, and that the application and expenditure of the same shall be made under the direction of the visitors, the city authorities being required to provide for the amount so estimated. And inasmuch as the duty of providing the means necessary to meet its quota of jail expenses, is imposed upon the city, it is but reasonable to suppose, the Legislature designed that the fees arising under the act of 1827, and thereby expressly directed to be applied for the relief of the city, in regard to its liability for a portion of such expenses, should go into the city treasury. This we consider a correct interpretation [**29]  of the intention of the Legislature, as manifested by the laws on the subject. The Mayor and City Council, therefore, had a legal claim for the jail fees received by Norwood as clerk.
Admitting they had, still the defendants insist, that they cannot recover any portion of the fees in this case, unless it can be shown that the suit was instituted for the use of the equitable plaintiffs, by authority from the State given for that purpose. But in our opinion, the decisions in Maryland fully establish the doctrine, that there is no necessity for obtaining permission or authority from the State, to institute such a suit as the present, upon the official bond of the clerk.
In Kiersted, Morrow and Chamberlain, vs. The State, &c., 1 G. & J. 231, the bond sued upon was taken in the name of the State, although no law expressly directed it to be so taken. The bond was given by an insolvent petitioner, conditioned for his appearance to answer the allegations of his creditors.

 [*193]  Two other cases of like character with the one above stated, were argued at the same time, and the court decided them all in the same opinion. It is there said; "Another question insisted [**30]  on by the appellants in the argument of this cause is, whether the appellees could sue these bonds for their use, there being no provision in any of the insolvent acts, to enable them thus to sue. This point we consider settled in this court, by the cases of McMechen vs. The Mayor and City Council of Baltimore, use of A. Storey, and McMechen vs. The Mayor and City Council of Baltimore, use of Hollingsworth & Williams, 2 Harr. & Johns 41, and 3 Harr. & Johns. 534. They were suits on an auctioneer's bond, taken under an ordinance of the city, which did not authorize any person in particular, to sue it. They were nevertheless sustained, and the judgment of the county court therein affirmed by this court."
This opinion it will be seen was delivered, between four and five years after the decision of the Supreme court of the United States, in Corporation of Washington, vs. Young, 10 Wheat. 406, to which the defendants have referred.
In the case of Ing & Mills, vs. State use of Lewis & McCoy, 8 Md. 287, the court say, "for a great length of time it has been the uniform practice in this State, in cases like and similar to the present,  [**31]  to institute the suit in the name of the State, causing the names of the parties for whose benefit it is prosecuted, to be endorsed on the writ and declaration." After speaking of the act of 1835, ch. 380, sec. 7, as providing that a court of equity may, in some cases, direct bonds to be taken in the name of the State, as obligee, which may be used by any person interested, as public bonds may, the court then say, "and even prior to the passage of the act of 1835, the Court of Appeals held, in 1 Gill & Johnson 231, that the uniform practice, for twenty years, allowed persons interested to bring suits on bonds taken in the name of the State, although the acts of Assembly, under which they are required to be executed, contain no specific provision for making them to the State, or give to the party, in language, the right to sue. These references are sufficient to show the suit was properly brought. 

 [*194]  There is no doubt that it is incumbent on the party suing on the bond, to show he has an interest in it before he could recover in a regular trial prosecuted to verdict."
The laws which provide for the execution of bonds, similar to the one before us, do not [**32]  require them for the purpose of protecting the rights of the State alone. They are also designed to secure the faithful performance of official duties, in the discharge of which, individuals and corporations have a deep interest, and therefore they should have the privilege of suing such bonds for injuries sustained by them, through the negligence or mal-conduct of the officers. Such doctrine, in regard to public official bonds, we consider as having been long established in Maryland, whatever may be the law elsewhere. And entertaining these views we cannot agree with the defendants' counsel, in supposing the present equitable plaintiffs could not institute this suit, because they had not obtained authority from the State for that purpose. In addition to the Maryland cases, which have been cited, see also State vs. Dorsey, et al., 3 G. & J. 75, 93.
Under the agreement waiving errors in pleading, and allowing such evidence to be given as might be admissible in any form of pleading, &c., there was no necessity to suggest breaches in the pleadings or upon the roll. An agreement of this sort is to be found in the case of Laurenson vs. The State, &c., 7 Harr.  [**33]   & Johns. 339. There an objection to the pleadings, for the want of breaches, was relied upon, the suit being upon a bond with a collateral condition. The court held the objection to be fatal, unless cured by the agreement; which they thought was a very loose course of proceeding, but nevertheless the court sanctioned it, and held its true meaning to be a waiver, on both sides, of all errors in the pleadings, and to dispense with the necessity for assigning breaches.
The principles which have been announced in this opinion, we deem sufficient to show that the court did right in admitting the bond objected to by the defendants, in their first bill of exceptions; and that there was no error in overruling the defendants' objection to the admission of the evidence offered, as set forth in their second exception.

 [*195]  In our opinion, there is evidence tending to establish the right of the equitable plaintiffs to recover for jail fees, and therefore the court committed no error in refusing to grant either the first or third prayers of the defendants, stated in their third bill of exceptions. And their second prayer was properly rejected, because there was no proof in support of [**34]  it.
We affirm the decisions in both appeals.
Judgment affirmed. 

2 of 18 DOCUMENTS 

STATE, use of THE MAYOR & CITY COUNCIL OF BALTIMORE, vs. LAMBERT S. NORWOOD, ELIZABETH SMITH, J. M. TUNRER and J. W. WATKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 195; 1858 Md. LEXIS 17 

June 24, 1858, Decided 

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

This action was brought on the 5th of May 1854, in the name of the State, for the use of the Mayor and City Council of Baltimore, against Lambert S. Norwood and his sureties, upon the official bond of Norwood, as clerk of the Court of Common Pleas, dated the 29th of June 1853. This bond was not stamped, and was given to the State in the penalty of $ 50,000, and conditioned in the same manner as the bond in the preceding case.

The declaration and plea were the same as those in the preceding case, and the agreement in regard to waiving errors in pleading, and admitting testimony, is set out in the opinion of this court.

In the course of the trial an exception was taken by the ruling of the court below, (FRICK, J.,) which is fully stated in the opinion of this court, and the verdict and judgment being in favor of the defendants, the plaintiffs appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

In a suit upon a bond with collateral conditions, brought in the name of the State, for the use of the equitable plaintiffs, the declaration did not assign breaches, and the parties agreed that "errors in pleading on both sides be waived, and that either party may give in evidence any testimony which might have been offered in any state of the pleadings." HELD:

That under this agreement breaches need not be suggested in the pleadings, or upon the roll, and the bond sued on must be admitted in evidence, even though the counsel for the equitable plaintiffs, when asked, refused to state what breach of the bond he intended to rely upon.

The act of 1856, ch. 352, repealing the stamp laws, removes all objection to a bond for want of a stamp, and authorizes the appellate court to reverse the decision of an inferior court, refusing to admit the bond in evidence because not stamped, though the repealing act was not passed until after such decision was made.

The stamp laws did not design or profess to confer upon the citizens of the State any private benefits or rights, but operated to impose burdens upon them for State purposes, which e Legislature had full authority to remove at any time, by a repealing act.

As a general rule, where the interpretation of a statute is doubtful, in respect to pre-existing contracts, it will be construed as operating prospectively, but when the language of a statute clearly indicates an intention that it shall have a retroactive effect, it must be so applied.  

COUNSEL:
B. C. Presstman and G. L. Dulany for the appellants:

The appellants insist that the agreement made by counsel before the trial, is sufficient, in itself, to meet the objections to the admissibility of the bond in evidence,  [**2]  on which this suit was instituted. Although the appellees appear unwilling that the "reasoning" of the court below should be considered as within the range of the exception, but simply the "conclusion" at which the court arrive, we have not been able to discover, in the appellees' argument, any other reasons for the ruling of the court, than those given by the judge who presided at the trial. The fact, then, that the bond was unstamped, and that the pleadings were defective, no breaches having been assigned, are the only objections the appellants are required to meet.

The true effect of a somewhat similar agreement, has been settled by this court in the case of Laurenson vs. The State, 7 H. & J., 339, where the court say that the want of breaches assigned in an action on a bond with a collateral condition, would be fatal, but for the waiver made by such an agreement. The agreement in that case was somewhat ambiguous, and it was insisted by counsel that it was confined to the benefit of the defendant. In our case, it was for the mutual benefit of plaintiffs and defendants. Another view of this objection is, that the docket of the court below disclosed the fact that no party other [**3]  than the State as legal plaintiff, and the Mayor and City Council of Baltimore as the equitable plaintiffs, were interested in this suit. The suggestion, therefore, that it was possible that the suit was on a bond originally made for the benefit of the State alone, but entered, by reason of some independent transaction, for the use of another party, is not entitled to weigh any thing in the discussion of the question.

The next question is, was this such a bond as needed a stamp for the purpose of this suit, viz: the recovery of money alleged to be due by the defendants to the Mayor and City Council of Baltimore, it being admitted that it did not require a stamp to make it obligatory for the recovery of any claim due under it to the State? We insist that wherever a bond is required to be given by a public officer to whom is entrusted the collection of the revenue of the State as well as that of a body politic, such as the municipal corporation of Baltimore, and where, by the provisions of the law under which he is elected, as in this case, his duties are prescribed, and the custody of the bond to be given by him is placed in the State's officer, and where the approval of his bond,  [**4]  likewise, as in this case, is also confided to another officer of the State, it would be unauthorized for any other form of bond to be demanded of him by any party interested in the money which he, by virtue or color of his office, might receive. It is plain, therefore, that if the doctrine contended for by the appellees be correct, a State officer of this description might become a legalized plunderer, guarded, indeed, by the panoply which the State has thrown around him. Can the same bond be good for the purposes of the State, and utterly worthless for the protection of others, whose interest she alone is competent to guard? There must be vice lurking somewhere in any argument sustaining such a legal proposition. Since the very able and sound theory of the relations sustained by political bodies corporate to the State sovereignty, pronounced by Chief Justice Taney, in the case of The State of Maryland vs. The Baltimore & Ohio Rail Road Co., 3 How., 549, 550, there can hardly be a doubt that these corporations are but agents of the State, and, as such, are to be regarded as but her ministers and stewards, under whatever name they may act. This bond is virtually one given to the State,  [**5]  although covering revenue due to the corporation of Baltimore. The correctness of this reasoning is never more apparent than in considering the issues involved in this controversy, where a distinction is sought to be made, by which a public officer of the State may be entrusted with power to collect large sums of money due to a portion of the citizens of the State, whose ability to pay State taxation may depend upon the security of liabilities to them, entered into by State officers, and be allowed to escape responsibility in the delicate--the most delicate--trust of collecting revenue. We rest with confidence on the grounds stated in the case of Laurenson vs. The State, already cited, as maintaining this salutary doctrine, which is based so firmly in morals, as well as in law, that no public officer shall be allowed to take advantage of his own wrong, and shield himself, after obtaining public moneys, with the unprincipled assumption that he had acted beyond the bounds of his authority, or had not complied with obligations resting upon him as a condition of office. But supposing this view is untenable, we still rely upon the reasoning of the court in State vs. Milburn, 9 Gill, 116,  [**6]  118, where, in considering the effect of requiring bonds given to the State to be stamped, the failure to provide, under the act of 1844, ch. 280, sec. 8, for curing the defect of the want of stamps in bonds given to the State, is pointed out. If this view be entitled to weight by parity of reasoning, it should avail where, as in this case, by the entire absence of any provision of law to enable any officer of the corporation of Baltimore to remedy this defect, so as to exempt the city from loss. Indeed, if it be true that for this reason the exemption is made in behalf of the State, a fortiori, it should be made in behalf of the city.

Lastly, we insist that the defect for want of a stamp, if it be one, is no longer available to the appellees, since the passage of the act of 1856, ch. 352, secs. 4, 5, which repeal the stamp laws, and make valid all obligations which may have been executed without stamps, and that the appellants are entitled to a reversal of the ruling of the court in this case, notwithstanding the court may have been right at the time of passing upon its admissibility in the trial below. 1 Cranch, 110, United States vs. Schooner Peggy. Neither does this case fall [**7]  within the category of cases where private rights may be interfered with by unjust legislation. On the contrary, the appellants insist that in this case the legislation was based upon sound policy, the effect of which is not to produce injustice, but rather to subserve the ends of equity and good conscience, by repealing provisions of laws designed for a different purpose than that sought to be accomplished by the appellees in this case.

John Stewart, C. J. M. Gwinn and Chas. H. Pitts for the appellees:

The appellees say that the court below was, under the circumstances disclosed by the record, right in refusing to allow the bond to be read in evidence. Let us examine the case as it stood before the court. The plaintiff had declared that the defendants were indebted to the State, for the use of the Mayor and City Council of Baltimore, on a certain bond in the sum of $ 50,000. Now it is plain that from such a bond several inferences might be drawn. It was possible the suit was on a bond originally made for the benefit of the State alone, but entered, by reason of some independent transaction, to the use of another party. It was also possible the suit was for the benefit of [**8]  the party for whose use it was entered, by reason of some actual, original and subsisting interest in the conditions of the bond. The court will see that the cases which the defendants would be required to meet, would radically differ, according as the one or other of these hypotheses might prove to be true. If the pleadings had been regular, the declaration, or, in conformity with the practice in this State, the replication, (Scott vs. State, use of Ducker, 2 Md. Rep., 290,) would necessarily have shown the breaches on which the plaintiff in interest proposed to rely, and the defendants would then have known what they had to answer. But the pleadings were not regular, and the defendants could not tell from the declaration filed, because of the divers claims such a declaration might cover, whether breaches quoad the State, or quoad the city, were intended to be relied on in the offer of the bond in evidence. Therefore, though errors in pleading were waived, yet as the agreement was that the plaintiff might give that in evidence which he could have given in "any state of pleadings," and as by this must have been meant any correct state of pleadings, it was incumbent on the plaintiff,  [**9]  when he offered the bond, to show orally to the court the state of pleadings which might have existed, and which would, if it had existed, have justified the introduction of the testimony. And, in showing such state of the pleadings, the equitable plaintiff must have shown the breaches on which he relied; for, even if the equitable plaintiff had been able to trace argumentatively, by construction of statute laws, an interest in the bond, that interest was of no moment in the particular suit, unless a breach could be shown affecting him, the city being regarded as the real plaintiff, though the State, technically speaking, is so. Ing, et al., vs. State, use of Lewis, et al., 8 Md. Rep., 295. For how, without such setting forth of the breaches, in some way, would the jury be able to assess the damages? It was not necessary, under the agreement, that the breaches should have been shown in the pleadings, but it was necessary they should have been supported on the roll, in order that the case should proceed at all. Clammer vs. State, use of Beall, 9 Gill, 281. In the absence of an averment of a breach in which this equitable plaintiff was interested, there was on the face of the paper offered [**10]  no sign even that it was relevant testimony. And though the rule is, that the court, "not seeing clearly" that such evidence "is wholly foreign and irrelevant to the issue, and cannot be connected with it by other facts and circumstances," may "admit the proof on the assurance of counsel that it will turn out pertinent and material," (Haney vs. Marshall, 9 Md. Rep., 213,) yet there is no such rule where "no such assurance was given," (Marshall vs. Haney, 4 Md. Rep., 510,) and still less where, as in this case, the plaintiffs' counsel refused to give the assurance or any information as to his meaning or purpose in offering the evidence. It seems, therefore, in our view, there is no question but that the court was right, under the circumstances, in refusing to admit the bond to be read in evidence. Nor is it believed the appellants' case is made better by the appearance in the record of what was said by the court when the bond was rejected. These expressions of the court are not rulings in the sense in which they seem to be taken by the appellants. The only ruling of the court was the refusal to admit the bond in evidence; all else that was declared by the court, and which stands in [**11]  the record, was but the reason given by the court for its ruling. The sufficiency or insufficiency of the method by which the court arrived at a conclusion, is not a proper subject of exception; the conclusion it came to is the sole ground to be reviewed. We do not mean to be understood as saying there are not cases in which reasoning and illustration, taking the form of propositions, may not be made the subject of exception, when uttered by a court at the trial of a cause. The case of Sowerwein vs. Jones, 7 G. & J., 339, perhaps, proves the contrary. But such reasoning and illustration, to be the subject of an exception, must be in such shape as that if it is wrong, the jury will be misled by it. This is the ground of the decision in the case referred to. But where there is no jury, and where the reasoning of the court in its rulings does not affect the jury, because that ruling takes the case from the jury, and, therefore, cannot influence them, such reasoning, if it be wrong even, cannot be made the subject of an exception. This direct and single point ruled, without regard to the reasons why it was so ruled, is the only question open for review in the Court of Appeals.

We [**12]  cannot believe this court will take a different view of this question, but if they do, we then insist that what was said by the court below was law. The court simply decided that the bond offered in evidence was not admissible to prove any breach in which the city was interested, because it was not stamped. That the court was, on the 12th of December 1854, right in this proposition of law, is plain from the case of The State vs. Milburn, 9 Gill, 116. So stood the law when the record in this case was made up, which record, in the very form in which it then was, is now before this court. So that we think, on the record, we are entitled to an affirmance. But the Legislature, by the act of 1856, ch. 352, sec. 4, (passed on the 10th of March 1856,) repealed the stamp laws of 1844, ch. 280, and 1845, ch. 193, and it is contended by the appellants that they can avail themselves of this repeal at the hearing before this court, and, by reason thereof, are entitled to a reversal of the judgment in this case. To this proposition we oppose an absolute denial, and say that this court cannot so far take judicial notice of the repealing act as to reverse this judgment because of any provisions contained [**13]  therein. The Court of Appeals, as it existed under the old constitution, was prohibited from reversing any judgment on any point or question which did not appear to have been presented to the county court, and on which that court had not rendered judgment. Act of 1825, ch. 117. The constitution of 1851, in art. 4, sec. 2, comes in aid of this limitation of the jurisdiction of this court, by declaring that the Court of Appeals shall have appellate jurisdiction only. The law and the constitution together say that this court, having only appellate jurisdiction, shall not consider any point or question which was not raised in the court below. Is there any exception to this absolute proposition? None whatever. Whether it would have been wise to provide for the recognition of an alteration either in the relation of the parties, in the history of facts, or in the state of the law, occurring after judgment and after appeal taken, but before appeal heard, is immaterial. No such provision has been made. The Court of Appeals takes jurisdiction of the case, on appeal, as the parties left it at the trial below. They may have failed to present the points which ought to have been presented, and which [**14]  are obvious on examination of the record. The Court of Appeals cannot remedy their neglect, if the court below was right on the record as it stands. The parties may have entirely overlooked, at the trial below, an act of Assembly then existing, and have failed to ask any instruction of the court as to its application to existing facts. Yet though the law on which they might have asked the instruction be within the judicial knowledge of the Court of Appeals, and though, if applied, the judgment would be righteously altered, in the absence of a prayer justifying an application of the law of which the consideration was omitted, the Court of Appeals can no more notice it than if such a law was not on the statute book. If they cannot take judicial notice of a law in existence when the trial below was had, because no question of its application or construction has been raised, whence is derived the right to take judicial notice of a law which, by reason of the date of its passage, was not, and could not have been, made the subject of their limited appellate jurisdiction? The appellants answer, they derive this right from the 5th section of the act of 1856, ch. 352. That section says: "That [**15]  all bonds that have been drawn previous to the repeal of this act, and have not been stamped, shall be as good and valid as though they had been stamped, and all those debts that have been created, where proper vouchers are shown, shall be as valid in law as though the stamp act had never been passed." Will the Court of Appeals say that this law not only makes such bonds valid, but authorizes them to say that the decision of the court below ought to be reversed, because it rejected testimony which, by the law as it then stood, was certainly inadmissible? We may admit, for the argument's sake, in the broadest sense, that this bond was, after March 10th, 1856, valid without a stamp, and that it was, after that date, sufficient to protect all who had an interest in its execution; but the fact that it had become a valid bond, and one capable of being offered in evidence in behalf of any party interested in it, after the appeal taken, does not make a court in error which, in conformity with the law as it stood when the decision was given, decided the bond to be then invalid as evidence. There is no rule of necessity or hardship, it is thought, which can authorize the court to come to any [**16]  other conclusion than that here insisted on, and the appellees, therefore, think the judgment in this case ought to be affirmed.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*204]  ECCLESTON, J., delivered the opinion of this court.
This suit was instituted in the name of the State for the use of the Mayor and City Council of Baltimore, against Lambert S. Norwood, Elizabeth Smith, Joshua M. Turner, and John W. Watkins, upon the official bond of Norwood, as clerk of the Court of Common Pleas for the city of Baltimore, dated the 29th of June 1853; the penalty of which is fifty thousand dollars. The nar and the plea are similar to those in the preceding case, between the State for the use of the Mayor and City Council of Baltimore, as plaintiffs below, against L. S. Norwood, E. Smith, and J. M. Turner.
In the case now before us, the record contains an agreement in the following language:
"It is agreed that in this case errors in pleading on both sides be waived, and that either party may give in evidence any testimony which might have been offered in any state of the pleadings. The copy of the bond may be given in evidence [**17]  without producing the original."
It appears from the record a jury was sworn, and their verdict, as stated, is, "that the defendants do not owe to the said plaintiff the said sum of money, or any part thereof, in manner and form as the said plaintiff hath above alleged." And thereupon the court, on the 12th of December 1854, gave judgment in favor of the defendants; from which this appeal is taken by the plaintiff.
The bill of exceptions shows that, upon the bond being offered in evidence at the trial, the defendants' counsel asked the counsel for the plaintiffs "for what purpose the same was offered, and what breach of said bond it was intended to rely upon in this case, and, on the plaintiffs' counsel refusing to answer that question, or declare on what breach he intended to proceed under said bond, the court sustained the objection of the defendants' counsel as to its being offered in evidence, and the same was ruled out, because the bond, on its face, covering all the duties and liabilities of the defendant, Norwood, as clerk of the Court of Common Pleas, unless it is offered with the intent to prove, under the breaches of it, some default in which the State is directly concerned [**18]  and interested, 

 [*205]  which intention is repelled by its being sued on for the use of the Mayor and City Council of Baltimore, it is inadmissible in evidence under the act of 1844, ch. 280, and 1845, ch. 193, it further not appearing to the court, for want of breaches assigned in the pleadings, for what purpose the bond is offered in evidence." To this ruling of the court, and refusal to admit the bond to be read in evidence, the plaintiffs excepted.
In Laurenson vs. The State, &c., 7 H. & J. 339, in a suit upon a bond with a collateral condition, no breaches were assigned, but there was an agreement similar, in most respects, to the one in the present case. The court considered that a waiver of errors in pleading, and as dispensing with an assignment of breaches in the regular mode. In delivering the opinion of the court, and whilst speaking of such a practice, the late Judge Martin called it "a very loose course of proceeding," and we think he gave it an appropriate name. The authority of that case, however, requires us to hold in this, that under the agreement there was no need of suggesting breaches in the pleadings, or upon the roll. And we must also say, that the [**19]  refusal of the counsel for the equitable plaintiffs to state what breach of the bond he intended to rely upon, when he was asked to do so, could not justify the court in refusing to admit that instrument to be read in evidence. If it had been admitted, it would still have been necessary for the equitable plaintiffs to show, by proof, that they had some valid claim for which the bond was responsible.
A further objection to the admissibility of the bond, mentioned by the court and insisted upon by the defendants' counsel, is, that it was not stamped, as required by the laws existing at its date. The acts alluded to, were passed for the purpose of raising revenue for the State. They did not design or profess to confer upon the citizens of the State, or others, any private benefits or rights, but operated to impose burdens upon them for State purposes. The Legislature, therefore, had full authority to remove such burdens at any time, by repealing those laws, and this was done by the act of 1856, ch. 352, secs. 4 and 5. The latter of these sections provides, "That all bills, notes or bonds that have been drawn previous to the 

 [*206]  repeal of this act, and have not been stamped, shall [**20]  be as good 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."
But for the decision below, it cannot be doubted that this repealing law would remove all objection to the bond for want of a stamp. Although the law, in this view of it, would be retroactive in its operation, still that could not prevent its having such an effect. It is true, as a general rule, that when the interpretation of a statute is doubtful, in respect to preexisting contracts, it will be construed as operating prospectively. But when the language of the statute clearly indicates an intention that it shall have a retroactive effect, it must be so applied. Baugher, et al., vs. Nelson, 9 Gill 299. See, also, Reynolds vs. Furlong, 10 Md. 318.
After the decision in Atwell vs. Grant, 11 Md. 101, with reference to the act of 1856, we must reverse the decision in this case, so far as regards the refusal of the court to admit the bond in evidence because it was not stamped. And such a reversal we consider proper, although [**21]  the stamp laws were not repealed until subsequently to the decision below.
In the case of United States vs. Schooner Peggy, 1 Cranch 110, Ch. J. Marshall says: "It is, in the general, true that the province of an appellate court is only to enquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will, and ought to, struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; 

 [*207]  and if the nation has given up the vested rights of its citizens, it is not for the court, but for the [**22]  government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."
The principle thus announced requires a reversal of the decision upon the question now under consideration. The act of 1856, in this connection, is merely an abandonment or surrender of the rights of the State. It does not impose upon the parties any obligations which the terms of the contract were not, in good faith, designed to create, and to insure the performance of. The law only permits the contract executed by the defendants to be used in evidence, which use had been prohibited for the purpose of securing the payment of a tax to the State, the failure to pay which has been released by the State, and the law releasing the tax declares that the contract shall be as valid in law as if the act creating the tax had never been passed.
In the previous case of the present term, to which reference has been made, it has been said there was no necessity to obtain authority from the State to institute [**23]  that suit, and, of course, the same law will apply to this.
Judgment reversed and procedendo ordered. 

3 of 18 DOCUMENTS 

TALMADGE F. CHERRY vs. MYER STEIN and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

11 Md. 1; 1858 Md. LEXIS 1 

JUNE, 1858, Decided 

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

This is an appeal from an order of the court below, (KREBS, J.,) dissolving an injunction which had been granted upon a bill filed by the appellant against the appellees. The allegations of the bill and answer, and the proof in the case, are fully stated in the opinion of this court.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Certain property, consisting of an entire square in the city of Baltimore, was advertised for sale at public auction, and if not sold together that a part would be sold in lots described in the advertisement. Before the sale a private contract, in writing, was made between the vendor and a purchaser, stating that the latter had purchased one of these lots, a description of which is given in the contract; and that "this sale was to be null and void in case the whole square, as advertised, shall be sold together, otherwise to remain in full force." On the day of sale an unsuccessful attempt was made to sell the whole square, and then the different lots, as advertised, were sold to different persons; the lot which the purchaser above named had agreed to purchase being struck off to him at the same price he had agreed to pay for it by his private contract. There was a discrepancy between the description of this lot in the advertisement and that in the private contract, the former including and the latter excluding a small triangular piece of ground, which was also included in the description of another lot sold to a different party. HELD:

That the unsuccessful attempt to sell the whole square at public sale, left the private agreement in full force, and this was the actual contract of sale between the parties, and the purchaser took according to the description in this contract, and not according to that in the advertisement.

Where there are two contracts of sale from the same party to two purchasers, made the same day and with only a few minutes intervening, and both include the disputed property, still the first purchaser acquires the better title.

Exceptions or objections to testimony, taken before a justice of the peace, by order of court, made before such justice, are not sufficient unless regularly filed in court, and on appeal such testimony is before the appellate court, even though it would have been excluded by exceptions properly filed

The modern English doctrine sustaining the right to ancient lights and windows, based upon twenty years user of them, is not applicable in this State; to adopt it would greatly interfere with and impede the rapid changes and improvements constantly going on in our cities and villages.

The doctrine, that the owner of two adjacent lots, one vacant and the other having a building with overlooking lights, who sells the latter without reserving the right to build on the vacant lot, or stop such lights, cannot afterwards legally obstruct them, or convey to another the right to do it, is only applicable where the same party is, at the time of sale, owner of both lots.

Where a party builds a house on the line of his lot, with eaves projecting over the adjoining lot, so as to throw thereon the water from the roof, it is a manifest encroachment upon, and appropriation of such lot, to the extent, at least, of the projection, and twenty years acquiescence by the owner of the adjacent lot, in this encroachment, is sufficient to lay the foundation for presuming a grant of the right so to use it.

But an injunction to prevent the obstruction of such a right will be dissolved, unless, it clearly appears, by the proof, that such obstruction would inflict, upon the rights of the complainant, an important and irreparable injury, such as could not be fully compensated by an action at law.

It must be a strong case of trespass going to the destruction of the inheritance, or the mischief be remediless, to entitle the party to an injunction; this writ is only used to protect rights which are clear, or, at least, free from reasonable doubt.  

COUNSEL:
H. L. Bond and Milton Whitney for the appellant, argued:

1st. The only question of fact in the case is, did the complainant purchase the small triangular lot described in the proceedings and marked yellow upon the plat? We insist that he did, and that the evidence in the cause proves it. The limits of lot No. 1, sold to the complainant, as described in the advertisement, unquestionably include this triangle. It is also included in lot No. 4, sold to Hurst and by him assigned to the defendants, as that lot is described in the certificate of sale given by Fite to Hurst. The evidence shows that the property was advertised for sale by Fite, as administrator; that lot No. 1, on the day of sale, was sold by the auctioneer to the complainant after reading the printed advertisement; that no plat was exhibited [**2]  at the sale; that Fite, as agent of the other owners, and as administrator, had full power to divide the whole property as he thought fit, and sell the same upon such terms as he chose; and that the sale of lot No. 4 to Hurst was subsequent to that of lot No. 1 to the complainant. The sale to the complainant being prior to that to Hurst gave to him the triangle in dispute. 17 Penn. State Rep., 222, Maynard vs. Esher. 9 Bing., 305, Swansborough vs. Coventry in 23 Eng. C. L. Rep., 286. 5 Md. 323, Moale vs. Mayor & C. C. of Balto.

Prior to the sale at auction, Gist, as agent of both Fite and the complainant, arranged the terms upon which the purchase money was to be paid, and the agreement was signed by the latter, and is filed in the cause as defendants' exhibit "S. No. 1." This agreement, we insist, had nothing to do with the boundaries of lot No. 1, it being understood that the lot sold to the complainant, mentioned therein, was the corner lot advertised for sale, and that the sale was according to the description in the advertisement. The title to this disputed lot being in the complainant, the first matter of complaint against the defendants, viz., the excavation of this [**3]  lot and building the side wall of their warehouse thereon, is well founded.

2nd. That the sale to the complainant carried with the lot all the easements claimed by the bill in this case, even though the disputed triangle was not included in that sale and the lines of the complainant's lot were bounded by the improvements. The sale was made by the agent of the owners of all the property, was made before the sale to Hurst, and the drainage of water and location of the windows on the complainant's lot were apparent and known to Hurst, from whom the defendants purchased, and to the defendants themselves after their purchase. These easements claimed by the bill, upon which we now insist, and which the defendants, by their excavations and the erection of their wall are obstructing, and of which obstruction we complain, and to prevent which we had a right to an injunction, are, 1st. Certain ancient lights and windows in the back building upon the complainant's lot, which had been used free of any obstruction for more than twenty years, and which the defendant's wall, when finished, will effectually shut up, darken and render utterly useless. In support of our right to this easement,  [**4]  we contend, 1st, that the doctrine of ancient lights is clearly established by the English decisions and should be sustained in this State; and 2nd, that if this doctrine of ancient lights should be regarded as inapplicable here, we still insist, that when these adjoining lots, Nos. 1 and 4, were sold by Fite, the lights in question were open and apparent, and if the owner of two adjoining lots, one of which is vacant, and the other has a building upon it, with lights overlooking the former, sells the latter, without any exception or reservation of a right to build on the vacant lot, or to stop the lights in the building sold by him, he cannot afterwards lawfully obstruct those lights himself, nor can he convey to another the right to do it. 2nd. The second easement claimed by the bill is, that for more than forty years prior to the sale, the eaves and roof of the back building on the complainant's lot had projected over the disputed triangle, and the water falling upon the roof had been accustomed to run and drain over this triangle and the vacant lot adjacent thereto. This easement is clearly recognised by all the authorities, and the bill alleges and the proof shows, that the defendants'  [**5]  wall, if carried up as designed, would interfere with and prevent the projection of the eaves and roof and the drainage of water therefrom, to the great damage of the complainant's lot, buildings and improvements. In support of our views upon these points we refer to the following authorities: 1 Green's Ch. Rep., 57, Robeson vs. Pittenger. 1 Sumner, 492, United States vs. Appleton. 3 New Hamp., 190, New Ipswich Factory vs. Batchelder. 3 Mason, 272, Hazard vs. Robinson. 1 Rhode Island Rep., 417, Kenyon vs. Nichols. 12 Mass., 160, Story vs. Odin. 5 H. & J. 467, Wright vs. Freeman. 13 Wend., 261, Mahan vs. Brown. 4 Sandford's Ch. Rep., 464, Banks vs. American Tract Society. 13 New Hamp., 360, Watkins vs. Best. Gale & Whateley Law of Easements, 38.

3rd. That an injunction was the proper remedy in this case. The allegations of the bill come within the decisions of this court as to what injuries will be stayed by injunction, and it must be borne in mind that the ground for the injunction is not for the trespass in digging the lot, but on that and the obstruction of the lights, and the drainage and flowage of the water from the eaves and roof of the building upon the complainant's [**6]  lot. 1 Md. 539, White vs. Flannigain. 7 Do., 408, Shipley vs. Ritter. 1 Md. Ch. Dec., 37, Georges Creek Co. vs. Detmold. 3 Do., 499, Carlisle vs. Stevenson.

William F. Frick for the appellees, argued:

1st. That the injunction was rightfully dissolved so far as it restrains the defendants from erecting their wall upon the triangular lot claimed by the complainant, and which is the first matter of complaint in the bill, because, 1st. The title to this triangle was not in the complainant. Fite was the agent of all the owners to divide and sell the lots. He included this triangle in the sale to Hurst, from whom the defendants claim, and excluded it from that to the complainant. The complainant can only claim through the written agreement "S., No. 1," and not through the auction sale, which was virtually on his account. The advertised terms of sale were varied by that written agreement. The lots were sold by lines running "more or less," and "according to the improvements as they stood." Whatever the complainant may have supposed, Fite never intended to sell him this triangle. He clearly sold it to the defendants, and if the complainant has been deceived by his written agreement [**7]  with Fite, his remedy is against Fite, and not against the defendants. In fact the complainant has admitted title in the defendants, and made that fact the ground of resistance to Fite's claim against him for the purchase money, in his answer in the case of Fite vs. Cherry, the record in which is, by agreement, evidence here. 2nd. The complainant must show an undoubted title to the triangle. He has not done so. His title is disputed on good ground by the defendants. The question between them, if there be any, can and must be tried at law, by trespass or ejectment. His remedy there is complete and perfect. It is a pure question of title. There is no ground to support equitable jurisdiction in the case. No irreparable or special damage of any sort is alleged in the bill, nor is any proved, nor can any be conceived, growing out of the title and possession claimed and taken by the defendants. If the complainant puts himself on the ground (not, however, admitted to be tenable) of right to equitable relief, because his title is purely equitable, the answer is, that he does not claim such title by his bill. He claims to have paid the entire purchase money and to be in possession, either already [**8]  holding or with an immediate right to the legal title. There is no averment in the bill, or proof to raise any special equity in favor of the complainant, or to show that his relief at law is not ample. 9 G. & J. 468, Amelung vs. Seekamp. 4 Gill 34, Hamilton vs. Ely. 3 Md. 490, Ches. & Ohio Canal Co. vs. Young. 1 Do., 525, White vs. Flannigain. Brown on Actions at Law, 389, 390, in 45 Law Lib. 110.

2nd. The second head of complaint is the obstruction and shutting up of certain ancient lights, so called, in the back-building on the complainant's lot. Upon this head it is contended, 1st. That to be an ancient light it must be, as averred in the bill, more than forty years old, which averment is not proved. Cro. Eliz., 118, Bury vs. Pope. 2nd. That to bring the case within the modern English doctrine of the presumption of a grant from twenty years adversary enjoyment, the possession must be adverse to the owners, not the tenants. The knowledge of, and acquiescence in, the right claimed, must be that of the owner. The permission of the tenant, as in other cases of easements, as ways, commons, &c., is not sufficient. Both these lots have been, for more than twenty years,  [**9]  in the possession of tenants. 11 East., 372, Daniel vs. North. 1 Crabb's Real. Prop., sec. 453. 3rd. And even if the case can be brought within the English rule, such ought not to be at all, and is not generally, the rule in this country. The modern English doctrine is not reasonably applicable to our rapidly growing towns and cities, and especially to the constantly improving thoroughfares of the latter. The rule has been expressly repudiated in New York and some other States, and though never yet considered by this court, has been rejected, after full examination, by the late Chief Justice Archer and his associate, R. B. Magruder, in the case of Smith vs. White, in Baltimore county court; and in their opinion, in that case, they adopt the law of Parker vs. Foote, 19 Wend., 309, and regard the language of Judge Dorsey, in 5 H. & J. 477, Wright vs. Freeman, as an obiter dictum, and not, therefore, of binding authority. See also 3 Kent's Com., 448. 13 Wend., 261, Mahan vs. Brown. 10 Barb., 537, Myers vs. Gemmel. 26 Maine, 436, Pierre vs. Fernald. 2 Conn., 597, Ingraham vs. Hutchinson. 5 Richardson, 311, Napier vs. Bulwinkle. 2 Watts, 331, Hoy vs. Sterrett. 4th. The complainant,  [**10]  by his bill, having put his claim on the ground of prescription, the averment being that the windows are more than forty years old, cannot, by proof, alter his case so as to make it one of an implied grant by Fite, the vendor, of the windows as necessary appurtenances to the lot, so as to bring himself within the principle asserted in Story vs. Odin, 12 Mass., 157. And even if he could, the principle of that case, "that one cannot derogate from his own grant," applies only where the owner of the house, to which the lights are claimed to be appurtenant, is also, at the time of the sale, the owner of the adjoining vacant lot. 1 Crabb's Real Prop., sec. 465. Also the implied servitude must be created by all the owners if there be more than one. One tenant in common cannot establish it on the common property without the consent of the co-tenants. 3 Kent's Com., 436. In this case there were different owners of the two lots. They were owned by the same family, but each by different persons. Further, the implication of a grant in such a case is founded on certain presumptions which are liable to be rebutted. They are here clearly rebutted by the nature of the property, the circumstances of [**11]  the sale, the acts and declarations of Fite, the agent to sell, and of the complainant and Hurst, the purchasers. The defendants' lot was sold to be improved, with which a grant of the windows in the complainant's lot was clearly irreconcilable. Fite supposed both lots were to be improved. The complainant had notice of this and did not then presume to claim the lights. 1 Crabb's Real Prop., sec. 446. 1 Price, 27, Compton vs. Richards. The grant must be without reservation or exception of a right to build on the adjoining ground, (12 Mass., 163,) and if the New York law is accepted as the true doctrine, the implication in question cannot arise in the sale of city lots. The grant must be express. 5th. Even if the defendants had no right to obstruct the windows by their building, it is no case for an injunction. The bill does not allege irreparable damage, nor any facts from which it may be inferred, nor are any proved. The proof is exactly the opposite. A mere diminution of the value of property by a nuisance, furnishes no ground for equitable relief. 2 Kent's Com., 925, and cases in note 4. The mischief does not reach to the substance and value of the property itself, and go to the [**12]  destruction of it in the character in which it is enjoyed. It is not shown there was no other reasonably convenient mode of lighting the room in question. The injury did not operate to destroy or diminish the comfort and use of the room. The proof shows it to be a one story room, capable, with perfect convenience, of being lighted either by the original windows on Liberty street, or by a sky-light. In fact this latter was done. It is hardly possible to conceive a case so barren of any claim to equitable interference. It is questionable whether there has been any damage at all, but certainly, if any, it is capable of perfect compensation at law. 2 Eden on Injunctions, 269, and notes. 1 Md. 525, White vs. Flannigain. 9 G. & J. 468, Amelung vs. Seekamp. 4 Gill 34, Hamilton vs. Ely. 1 Crabb's Real Prop., sec. 475. 16 Ves., 338, Attorney General vs. Nichol.

3rd. The third ground of complaint is, interference with the eaves of the back building and drainage of its roof upon the adjacent lot. The same principles of law set forth under the preceding point apply equally to this. It may be further remarked, 1st. That there is no proof of the existence of any particular mode [**13]  or channel of drip as appurtenant to the complainant's back building. 2nd. That there is no proof of any actual or proposed interference with the eaves of his roof. 3rd. That the water is capable, with entire convenience, of being thrown into Liberty street, as is clearly shown by the proof of the witnesses, one of the complainant's own witness and a tenant of the property for twenty-seven years. This whole matter, however, is finally put to rest here by the agreement of the solicitors for both parties, that the judge below should make a personal inspection of the premises, and both parties are bound by his judgment on that view. He says, in his opinion: "In regard to the right claimed by the complainant to drain the water from the roofs of these houses, I am convinced, from an inspection of these premises, which I have made at the request of the solicitors of both parties to this cause, that the hardship of denying it to him is by no means very serious, as the rain-water can be conducted, even from the roofs of the old buildings now standing on his lot, with very little inconvenience and expense, into Liberty street. I also find, that the only building on them having eaves projecting [**14]  over this adjoining lot, is what is called the "old kitchen;" and further, that the wall, which the defendants are now engaged in building, will not come in contact with the rear wall of that part of his back building, but at one end of it will be eleven inches from it, and at the other seven inches, and consequently will not come in contact with the eaves which project over this wall except for a small part of their length, and in regard to this part, I understand that it is not intended that the wall which the defendants are building shall interfere with it." 

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*9]  ECCLESTON, J., delivered the opinion of this court.
This bill filed on the 11th of September 1854, by the present appellant, (Cherry,) against the appellee, alleges, that Conrad Reineker departed this life possessed of certain leasehold estate in the city of Baltimore, and that, in 1853, letters of administration on his estate were granted, by the orphans court of said city, to Conrad R. Fite. That he, as administrator of said 

 [*10]  Reineker, "advertised for sale at public auction, on the twentieth day of April 1854, in [**15]  the public newspapers published in said city, the following described lot and premises: all that lot of ground on the south-east corner of Baltimore and Liberty streets, eighteen and one-half feet front on Baltimore street by seventy-three feet on Liberty street, widening on Liberty street to thirty-five feet, occupied by Schwartz & Dix, confectioners; and that at said sale the said lot and improvements thereon were sold by the said administrator," to the complainant, for the sum of $ 20,000; that the complainant hath satisfied the said Fite the purchase money, and hath been put in possession of said lot and premises. The bill also states, "that the improvements on said lot consist of a three-story brick house on Baltimore street, fronting thereon eighteen and one-half feet, and extending about thirty-two feet, the rear wall of which said house is about thirty-four feet in width; and also a back building adjacent to said house, fronting toward Liberty street, leaving in the rear of said back building a portion of said lot in said advertisement mentioned, and sold to the complainant as aforesaid, of about four feet in width on its widest point, and narrowing to a point at the north-east [**16]  intersection of the wall of said back building, with the wall of the building on Baltimore street."
The bill likewise alleges, that there were in the rear wall of the back building certain windows and lights which opened upon that portion of the lot sold to the complainant and described as situate in the rear of the back building, the same being a triangle four feet wide at the widest point; adjacent to which open triangle there was also, at the time of the sale, an open lot then in possession of said administrator. That the said back building and the windows and lights therein have been standing and used for above forty years, without let or hindrance; and that for the space of forty years the eaves and roof of said back building have projected over the said portion of the complainant's lot four feet wide, and the water falling on said roof has been accustomed to run and drain over said four feet lot and the vacant lot adjacent thereto.
The bill then charges, that the defendants wrongfully, and 

 [*11]  to the great injury and damage of the complainant, having dug away the entire portion of his lot in the rear of the back building to the depth of several feet, are proceeding to [**17]  lay the foundation of a wall thereon, and are now actually engaged in building said wall in contact with the rear wall of the complainant's back building, which wall being so erected, besides depriving him of a strip of the lot sold by Fite to him as aforesaid, will effectually stop up and darken and render useless the lights and windows of the back building aforesaid, and will prevent the projection of the complainant's eaves and roof over his said lot, and the consequent drainage of the water therefrom, as the defendant's have no right to do, to the great damage and injury to the complainant's lot, building and improvements.
The bill prays that the defendants may be restrained, by injunction, from digging away, or upon, the portion of the complainant's lot in the rear of his back building, and from building their said wall thereon, and also from erecting said wall so as to darken and shut up the windows and lights in said back building; and from disturbing, removing, or any wise interfering with, the eaves and roof of the same, or with the full drainage of the water therefrom over the said lot in the rear of the back building, or over the vacant lot adjacent thereto. And there is [**18]  a prayer for general relief also.
A portion of the bill charges the defendants with doing injury to the north-east corner of the complainant's house on Baltimore street, by digging with a view of making a vault, but his counsel have abandoned all claim to relief for any injury to this portion of the property, and therefore the subject is not now before us for consideration.
With a view of describing the lot alleged to have been purchased by the complainant, he filed with the bill a plat as his "Exhibit A."
The answer of all the defendants, (Myer Stein, Samuel Stein, Daniel Stein, Solomon Stein, Henry R. Reynolds and J. Reynolds,) admits, that Conrad R. Fite advertised for sale, on the 20th of April 1854, the lot and improvements on the south-east corner of Baltimore and Liberty streets, occupied by 

 [*12]  Schwartz & Dix, confectioners; and that the complainant purchased the same for the sum of $ 20,000. But the circumstances of the purchase, as the defendants have been given to understand and believe, were, that Conrad R. Fite, as part owner and agent for the other owners of the entire property, advertised for sale the property on Baltimore street, bounded by Sharp, Baltimore [**19]  and Liberty streets, well known as the old "Congress Hall," there being upon the Baltimore street front three buildings adjoining each other: the most westerly occupied by Schwartz & Dix, the central building by Obandoff & Lauer, and the most easterly by John Gephart, Jr. And prior to the offering of said property at public auction, the complainant agreed with said Conrad R. Fite, to purchase "the lot and improvements on the south-east corner of Baltimore and Liberty streets, occupied by Schwartz & Dix, fronting on Baltimore street 18 1/2 feet, more or less, by 73 feet, more or less, on South Liberty street," for the sum of twenty thousand dollars, the condition of said purchase being, that the same should be "null and void in case the whole square, as advertised, should be sold together, otherwise to remain in full force."
With the answer, and as part thereof, the defendants filed a copy of the written agreement between the complainant and C. R. Fite, in reference to the sale and purchase of said property. Which copy is marked S, No. 1.
The answer further says, the whole square, as advertised, was not sold at public auction, there not having been made therefor an adequate bid, according [**20]  to the judgment of the said Fite, and accordingly the lots and improvements thereon were separately sold; and the prior sale of the lot on the south-east corner of Baltimore and Liberty streets, to the complainant, was confirmed, according to the written terms thereof before mentioned, by the receipt, at public auction, of the bid of the complainant therefor, at the sum of twenty thousand dollars. The adjoining lot and improvements were, at the same time, sold at public auction to John Hurst for the sum of twenty thousand and fifty dollars; and a few days after said sale the said Hurst assigned his purchase, and all benefit thereof, 

 [*13]  to the defendants, Myer, Samuel, Daniel and Solomon Stein, co-partners, trading as Stein & Brothers.
It is likewise stated in the answer, that in conformity with the terms of the last mentioned sale, the said Fite executed and delivered to the said Hurst a certificate of his purchase, wherein the terms of sale and the boundaries of the property sold were distinctly and accurately set forth, in these words, to wit: "Beginning on the south side of Baltimore street, at the distance of eighteen feet, six inches east from Liberty street, and running [**21]  thence south about forty-two feet, as the line is located upon a plat of the entire property, recently prepared by Owen Bouldin, surveyor; then south-westerly by a straight line about eighty-two feet, seven inches, more or less, along the eastern walls of the warehouses, fronting on Liberty street, to the four-story brick warehouse on Liberty street, now owned by C. R. Fite," &c., &c.
A copy of which certificate of sale, marked S, No. 2, is filed with the answer as part thereof.
Further answering the defendants say, that, by virtue of said assignment of purchase by said Hurst to them, (the said Myer, Samuel, Daniel and Solomon Stein,) they became the owners of said property. That upon the entire property, (known as Congress Hall,) at the time of these purchases, the buildings were old and dilapidated, and the large prices agreed to be paid therefor were owing chiefly to the value of the lots, and not the improvements thereon. That it was contemplated by the sellers, that whether the property should be sold in bulk or in parcels the old and dilapidated buildings would be torn down by the purchasers, to make room for more modern and substantial improvements; and the division thereof [**22]  was made in reference to such contingencies. Accordingly, as will be seen by comparison of the two written memoranda of sales, one to the complainant and the other to the respondents, Stein & Brothers, the division line between them was made to run with the improvements as they then stood; no more ground on the one hand having been sold to the complainant than was covered by the improvements occupied by Schwartz & Dix; and the western line of the lot sold to Hurst being made to run 

 [*14]  along the eastern wall of the warehouses on Liberty street, and of course, therefore, along the eastern wall of the improvements upon the lot occupied by Schwartz & Dix and purchased by the complainant. And the respondents further say, that immediately after they, (Stein & Brothers,) purchased the lot and improvements sold to Hurst as aforesaid, they proceeded, in conformity with their design in the purchase of the same, to tear down the improvements for the purpose of erecting on the lot a modern and substantial store and warehouse, of nearly the entire depth of their lot, for the purpose of their business, which is a wholesale clothing business. That they made with the respondents, Messrs.  [**23]  H. & J. Reynolds, (builders,) a contract for the building of said store and warehouse, and before proceeding to excavate or build, they caused the line of their lot to be carefully and distinctly surveyed and located by Bouldin, the surveyor, who made the plat, according to which the sales of the various lots were made by said Fite. That the lines of their lot were properly located with reference to the description thereof, contained in the written agreement between Fite and Hurst; which lines were strictly and carefully observed and followed in the building put upon the premises, up to the time of making the answer.
"The respondents admit it to be true, that, as they have built, as of right they might do, along the eastern wall of the warehouses on Liberty street, they have encroached upon a triangle (marked yellow) upon a plat filed with the complainant's bill; but they deny that in so doing they have encroached upon any rights of the complainant, no part of said triangle having been purchased by the complainant, and all easements therein, in reference to water and light, being subordinate, (if any such exist, which these respondents do not admit,) to the superior rights of these [**24]  respondents, (Stein & Brothers,) in reference to the improvements of their property."
The answer likewise denies that there is appurtenant to the complainant's lot any prescriptive right to throw the water from his spouts or eaves upon the lot of the respondents, all such water going naturally and conveniently, as it ought to do, into Liberty street. It also denies, "that there are any ancient 

 [*15]  lights appurtenant to said lot and improvements of the complainant, which are darkened or shut up by the improvements now being made by these respondents, all such lights, (if any there be,) being of recent date; and the entire improvements of the complainant being naturally and conveniently lighted from its front upon Baltimore and Liberty streets."
The defendants deny, generally and particularly, all averments contained in the bill, in reference to damage and injury to the rights of the complainant by the building then being erected by them. They also deny the existence of any prescriptive or other right, upon the part of the complainant, to keep open windows or to throw water from his roof or spouts, upon the lot purchased by them, in such wise as to interfere with the improvement [**25]  of their property, in the mode in which they were then improving it.
The following is the copy of the written agreement between the complainant and C. R. Fite, referred to in the answer as "S, No. 1:"
"I have this day purchased from C. R. Fite, administrator of Conrad Reineker's estate, the lot and improvements on south-east corner of Baltimore and Liberty streets, occupied by Messrs. Schwartz & Dix, fronting on Baltimore street 18 1/2 feet, more or less, by 73 feet, more or less, on South Liberty street, subject to the annual ground-rent of $ 4.44, for which I hereby agree and bind myself, my heirs and assigns, to pay him the sum of twenty thousand dollars, one-half of the purchase money, say ten thousand dollars, to be placed on permanent ground-rent of 6 per cent. per annum, payable quarterly from date of sale; and four thousand dollars, to be placed on ground-rent at 6 per cent., redeemable within five years from this date, interest payable quarterly; and the balance, say six thousand dollars, payable one-third in cash; the balance, say four thousand dollars, payable in three equal payments, say 6, 9 & 12 months, with interest from date; notes to be given for the several payments,  [**26]  with interest as above; this sale to be null and void in case the whole square, as advertised, shall be sold together, otherwise to remain in full force.

 [*16]  Witness my hand and seal this April 20th, 1854.
Signed,   T. F. CHERRY,   (Seal.)"
"Witness:--C. H. Gist."
The following is a copy of the advertisement of sale referred to in the proceedings, and as published in the newspapers:
"Valuable site for a new Hotel on Baltimore street.--Old Congress Hall square will be offered at public sale on this day, 20th inst., at 4 o'clock, p. m., on the premises, that valuable square of ground, with improvements, embracing twenty stores and dwellings, occupying the entire square bounded by Baltimore, Sharp, German and Liberty streets, fronting ninety-three feet on Baltimore street, and the same on German street, by 188 feet on Sharp and Liberty streets, the whole subject to a small ground-rent of about $ 25. Being one of the most valuable and eligible squares in the city for a first-class hotel, in the heart of the business part of the city, and convenient to the Baltimore and Ohio Railroad depot. If the entire square is not sold together, a part of it will be sold in [**27]  lots, viz:
"No. 1. The lot and three-story warehouse, south-east corner of Baltimore and Liberty streets, 18 1/2 feet on Baltimore street, by 73 feet on Liberty street, widening on Liberty street to 35 feet, occupied by Schwartz & Dix, confectioners.
"No. 2. Lot and three-story warehouse, 22 by 35 feet, on South Liberty street, adjoining the above.
"No. 3. Lot and two-story warehouse, 22 by 35, adjoining the above on South Liberty street.
"The whole of lots Nos. 1, 2 and 3, subject to a small ground-rent of $ 4.44.
"No. 4. The lot and three-story warehouse, on Baltimore street, next to the south-east corner of Baltimore and Liberty streets, fronting on Baltimore street 26 1/2 feet by about 120 feet deep, occupied as two stores and dwelling. Subject to a small ground-rent of $ 4.44 per annum.
"No. 5. The lot and two-story store and dwelling, No. 9, North Liberty street, east side, 5 doors above Baltimore street, fronting 21 feet on Liberty street, running back to Little Sharp street 85 feet, occupied by a merchant tailor. Ground-rent $ 1.25 per annum.

 [*17]  "Terms: One-third cash, the balance in 6 and 12 months, with interest and approved notes.
"All the Congress [**28]  Hall square and improvements may be placed on ground-rent, except $ 30,000, payable as above, one-third cash, balance in 6 and 12 months, with interest.
"C. R. FITE, Administrator."
"Cannon & Matthews, Auctioneers."
Upon the bill being filed an injunction was issued. After the answer came in, testimony on both sides was produced; and upon the defendants' motion an order dissolving the injunction was passed by the court, on the 23rd of October 1854, from which the complainant appealed.
The first question to be examined is, whether Cherry, by the sale to him, acquired a title to the small triangle claimed by the defendants as included in the sale to Hurst, on which they have placed their wall, and is described on the plat filed with the complainant's bill as being "colored yellow."
In speaking of the two parcels of property, one of which was sold to Cherry, and the other to Hurst, and by him to Stein & Brothers, the former will be called lot No. 1, and the latter lot No. 4, these being the numbers by which they are designated in the advertisement.
From the proceedings and proof it will be seen, that the entire property known as "Old Congress Hall" was advertised to be sold [**29]  on the 20th of April 1854; the whole square to be sold without division if it could, but if not, then a part would be sold in lots; which lots were described, being numbered from 1 to 5 inclusive. This advertisement was signed by "C. R. Fite, administrator," without saying administrator of whom.
Prior to the public auction, but on the same day, Cherry and Fite entered into the private agreement which has been mentioned as "S, No. 1." After Cherry had signed this instrument the entire square was offered at public sale, but was not sold. Subsequently, lot No. 1 being offered at public auction, was struck off to Cherry at his bid of twenty thousand dollars. Shortly after this lot No. 4 was sold to Hurst, who was present when lot No. 1 had been struck off to Cherry. 

 [*18]  And subsequently Hurst assigned his purchase to the defendants, Stein & Brothers.
It is conceded, that the limits of lot No. 1, as described in the advertisement, include the disputed triangle, and that the same is also included in the description of lot No. 4, as set forth in the certificate of sale to Hurst, which has been referred to as "S, No. 2."
If both contracts between Fite and the two purchasers include [**30]  the disputed property, although the two sales were made on the same day, and only a few minutes intervening, still Cherry, as being the first purchaser, acquired the better title. 5 Harris, (17 Penn.) Rep., 223.  9 Bingham 305, in 23 Eng. C. L. Rep. But the appellees insist, that according to the proper interpretation of the real contract of sale between Fite and the appellant, his purchase did not embrace the disputed triangle. They say he did not purchase his lot according to the description in the advertisement, but according to that set out in the private agreement, in which it is not said the lot should be 35 feet wide. And in view of the evidence before us, we think the appellees are right in supposing that the sale to Cherry did not give him a right to the triangle.
The private agreement seems to have been the actual contract between the parties. It begins by saying: "I have this day purchased from C. R. Fite, administrator of Conrad Reineker's estate," &c., and concludes with, "this sale to be null and void in case the whole square, as advertised, shall be sold together, otherwise to remain in full force."
Such an instrument constituted [**31]  a valid and effective sale, subject to become a nullity upon a single contingency, which did not occur. The subsequent offer of the lot at auction, the same day, was quite useless so far as related to a sale between Fite and Cherry. The latter had already bound himself to purchase the property at $ 20,000.
An unsuccessful effort to sell the square as a whole, and then proceeding to sell it in parcels to different persons, would be quite sufficient to put an end to the only contingency on which the private sale to Cherry was to be null and void, and by the express terms of the agreement would leave it a contract of sale "in full force."

 [*19]  Moreover, Fite, in his testimony, says: "Deponent agreed to sell the corner property to Dr. Cherry for twenty thousand dollars, prior to the public sale, on condition that the entire property should not be sold, which agreement was in writing, and of which Exhibit No. 1, filed by defendants, is a true copy. If the property had brought more at the sale the benefit would have been Cherry's, if less his loss.
"It was offered under this agreement between him and Cherry. This agreement was the agreement of sale between them, the property was [**32]  sold according to this agreement, and not according to the printed advertisement, because the advertisement prescribed different terms of payment and different description of property." And Fite, as a witness, also says: "Allow me here to say, that it was agreed between us, that the property was to go to public sale, and that Dr. Cherry was to have the benefit of any excess and suffer any loss over the sum agreed to be paid."
If "S, No. 1," be the real contract of sale to Cherry, its terms show that he purchased of Fite, as administrator of C. Reineker's estate; consequently the rational conclusion is that the property belonged to that estate, especially when, as here, no lines or description are given, which necessarily include other property. Nor is there any proof showing the disputed triangle was held by Fite, as administrator of C. Reineker; but, on the contrary, we understand the testimony of Fite, as inconsistent with the idea of his having any authority, as such administrator, to sell lot No. 4, the description of which we have seen includes the triangle.
Exceptions or objections to the testimony of Fite, were made before the justice of the peace who took the testimony under [**33]  an order of the court, but exceptions were not regularly filed in the court below, as required by the act of 1832, ch. 302.  Cross, et al., vs. Cohen, 2 Gill 257. The evidence is therefore before us for consideration, even conceding it would have been excluded by exceptions properly filed.  Gibbs vs. Gale & Stranberg, 7 Md. 76.
By agreement "the bill and proceeding, and papers in the case of Cherry & others, vs. Fite & others, referred to in the 

 [*20]  opinion of the judge," in the present case, are admitted here as evidence, to have the same effect as if they had been inserted in this record.
The object of that bill was to confirm the sales of the property belonging to the estate of C. Reineker, made by Fite to the different purchasers thereof; but no reference whatever is made to the sales to Hurst or other persons, who purchased of Fite any portions of the "Old Congress Hall square," not owned by C. Reineker at the time of his decease. The reason for seeking a confirmation of sales of the several parcels of the estate of C. Reineker, appears to have been, because there was a minor interested in that estate.
The sale to Cherry is [**34]  described in that bill as "the lot and premises on the south-east corner of Baltimore and Liberty streets, fronting on Baltimore street 18 1/2 feet, more or less, by seventy-three feet, more or less, on Liberty street, subject to its proportion of the ground-rent of $ 7.94, on the whole lot," &c., but the description makes no allusion to the advertisement, nor does it say any thing in regard to widening the lot to thirty-five feet, or to any other width, on Liberty street. The decree ratified and confirmed "the contracts as set forth in the proceedings," and appointed Conrad R. Fite, trustee, "to execute the deeds of assignment and of sublease according to the said contracts." Subsequently to that decree, Cherry went on to perform his contract, in part, by making certain payments, but when others fell due he refused or failed to pay. The trustees then filed a petition in the cause referred to, asking the court to require or compel Cherry to pay in compliance with his contract and the decree. Among other reasons urged by Cherry, in his answer to the petition, why he should not be compelled to fulfil his part of the contract, he alleged that he purchased the lot No. 1, upon the terms [**35]  set forth in the advertisement; that Fite had refused to comply with the terms of sale as to part of the property, and by conveying that part of the property to other persons, he had put it out of his power to comply with the terms of the sale made by him to the present appellant. The portion of property here alluded to as having been conveyed to other persons, means, of course, the 

 [*21]  triangle. Notwithstanding this answer, the court ordered and decreed, that Cherry should pay the purchase money which had fallen due and remained unpaid; which decree has never been reversed or altered.
In view of all the circumstances we do not think the appellant has given sufficient proof to establish the fact, that he purchased the disputed triangle, and consequently he is not entitled to the injunction, upon the ground of his having title to the land itself, on which the defendants have placed their wall.
Conceding it to be true that the defendants were erecting a wall upon their own ground, to which the complainant had neither a legal or equitable title, still, it is said, the injunction should be sustained, because the wall, when finished, would effectually shut up, darken and render [**36]  utterly useless, certain lights and windows in the back building upon the lot purchased by him, which windows were ancient, and had been used free of any obstruction, for more than twenty years, admitting light and air, across and over the premises now claimed to be owned by the defendants. This right, as being based upon more than twenty years user, was not urged with much earnestness by one of the solicitors for the appellant, but was by the other.
On behalf of the defendants it has been said, the averments in the bill are not sufficient to sustain such a claim. But we deem it unnecessary to inquire into the character of the averments, or the sufficiency of the evidence on the subject; because we do not consider as applicable to the cities and villages in this State such a right to lights, by twenty years user of them, as in some of the American cases has been called the "modern English doctrine." To adopt it would greatly interfere with, and impede, the rapid changes and improvements which are here constantly going on. The question has never been settled by a decision of our Court of Appeals directly on the subject. The only case having any bearing upon it, is that of Wright  [**37]   vs. Freeman, 5 H. & J. 467, where the late Judge Walter Dorsey says, by way of illustration, in regard to the question there under consideration: "So the enjoyment of lights for twenty years, with the acquiescence of the owner of 

 [*22]  the fee of the adjoining ground, is such a decisive presumption of a right by grant or otherwise, unless contradicted or explained, that the jury ought to believe it." There, however, the question was not in reference to lights. The inquiry was, whether from twenty years non-user of a private right of way the jury could presume a release of it? And the court held that the adversary user of a right of way over the lands of another for twenty years, would be a sufficient foundation to presume, that the right originated in grant; and consequently, for the purpose of quieting possession, it must follow that twenty years non-user of the right would extinguish it, by creating a presumption of its release.
Making use of a man's land, without his consent or by authority of law, as a road or way, is such an encroachment upon his property as gives him a right of action for every such act; and if he submits to the user for more than twenty years, without [**38]  objection, it may well be presumed he has been prevented from objecting in consequence of the user being rightful. It is not the common course of men to submit to having their property appropriated to the constant or frequent use of others, having no authority to do so, and yet take no steps to prevent it. But where A. makes a window in his own house, overlooking the open grounds of B., it is no infringement of the rights, or encroachment upon the property of the latter. Neither is it an act for which he can maintain an action, or resort to any means by which he can compel the former to shut up the window. And yet, under the English rule, if the window remains open and unobstructed for more than twenty years, B. cannot afterwards erect a building on his own land, if it obstructs the light. To prevent such a consequence the rule does not give him any right of action or legal proceeding, but his only remedy is the seemingly ill-natured one of rendering the window of his neighbor useless, by building a wall or other obstruction for that purpose alone, if at the time he has no wish to build a house on his own property. And if the window be of considerable height the expense of obstructing [**39]  it might be equivalent, or nearly so, to the value of the unimproved or vacant land designed to be protected. The effects 

 [*23]  and legal consequences resulting from the user of a way, and that of a light, are so essentially different, we do not perceive the propriety of holding that the twenty years rule which is applicable to the former should also be applied to the latter.
The question was presented and decided in Smith vs. White, in Baltimore county court, by Chief Justice Archer, and his associate, R. B. Magruder, judges of much distinction. In their opinion they say, "although the law may now be regarded as settled in England, since the modern decisions there, that notwithstanding the windows, whose obstruction is now contemplated by the defendant, Mrs. White, are not what is strictly called ancient, yet (to use the expression of Tindall, Ch. J., in the case of Penwarden vs. Ching, Mood & Malk, 400; S. C. 22; Sargt. & Lowb., 340;) they are such as the law in indulgence to lights has in modern times so called, and to which the complainant would have a right if the question now before us were before a court in England; yet we are not satisfied that, upon principle,  [**40]  the common law as it existed at the time of the separation of Maryland from the mother country, and at the adoption of our Bill of Rights, recognized the modern doctrine in England on the subject of lights." They refer to Wright vs. Freeman, as the only case in Maryland bearing upon the subject. And in regard to the language of Judge Dorsey, already quoted by us, they very correctly consider it as not of binding authority, because the direct question whether twenty years user would give a right to lights, was not before the court. In the opinion of those two judges, they likewise hold, that the reason upon which the rule, as established in England, rests, is not the same as that which prevails to sustain a defence of adverse possession in ejectment, or presumption of a grant arising from actual adverse occupation of a water course, common, way, or fishery. And they adopt the ruling of the court in Parker vs. Foote, 19 Wend. 318.
We deem it unnecessary to enter into an elaborate examination of the authorities, because in Parker vs. Foote, Judge Bronson has reviewed them, and has given the subject a careful and able investigation. His reasoning, in our opinion,  [**41]  is so correct, that we cannot avoid yielding our assent to the propriety 

 [*24]  of his conclusion, which is adverse to the view insisted upon by the appellant. The judge says: "There is, I think, no principle upon which the modern English doctrine on the subject of lights can be supported. It is an anomaly in the law. It may do well enough in England. And I see it has recently been sanctioned with some qualification, by an act of parliament. Stat. 2 & 3, Will. 4, ch. 71, sec. 3. But it cannot be applied in the growing cities and villages of this country, without working the most mischievous consequences. 3 Kent's Com., 446, note (a.) Nor do I find that it has been adopted in any of the States. The case of Story vs. Odin, 12 Mass. 157, proceeds on an entirely different principle." See also Myers vs. Gemmel, 10 Barb. 537. Pierre vs. Fernald, 26 Me. 436. Ingraham vs. Hutchinson, 2 Conn. 584. Napier vs. Bulwinkle, 5 Richardson's Law Rep., 311.  Hoy vs. Sterrett, 2 Watts 327.
Another ground relied on by the appellant, in support of his right [**42]  to the injunction, is based upon the doctrine recognized in the decision of Story vs. Odin, and in 1 Sumner's Rep., 501, United States vs. Appleton. According to those cases, if a man is owner of two adjoining lots of land, one of which is vacant, the other having upon it a building with lights overlooking the former, and he sells the latter, without any exception, or any reservation of a right to build on the vacant lot, or to stop the lights in the building sold by him, he cannot afterwards lawfully obstruct those lights. And as he cannot do this himself, so neither can he convey to another the right to do it.
For the purpose of bringing his case within this doctrine, the appellant's counsel insist, that when the lots No. 1 and No. 4 were sold by Fite, the lights in controversy were open and apparent, and consequently the defendants had no right, subsequently, to obstruct them.
From an examination of the authorities on this subject it clearly appears, that that principle is only applicable where the vendor of the house having the lights, was, at the time of sale, not only owner thereof, but likewise owner of the adjoining vacant lot. Now it might be conceded, that the [**43]  doctrine of 

 [*25]  the cases referred to is the law of Maryland, and still it would not sustain the appellant's claim to have his lights protected by injunction. His lot and that of the defendants', at the time of his purchase, were not owned by the same persons. It is true both lots were sold by Fite, but he was acting in the character of an agent or of a representative. And it appears from the evidence, that the parties, for whom he acted as owners of lot No. 4, were not the same as those having an interest in lot No. 1. Some of the parties had an interest in both, but others were part owners of No. 4, without having any interest in the other lot; and so vice versa. Under these circumstances the doctrine above stated is not applicable to this case.
The appellant insists that he is entitled to relief by injunction, on account of the injury he would sustain by the erection of the defendants' wall, because it would injuriously interfere with the eaves of his back building and the drainage of water therefrom. The allegation is, that for forty years prior to the sale, the eaves and roof of the back building had projected over the triangle in controversy, and the water falling [**44]  on said roof had been accustomed to run and drain over the triangle, and the vacant lot adjacent thereto; that the defendants had commenced erecting their wall upon the triangle, in contact with the rear wall of the complainant's back building, which wall if carried up as designed would interfere with and prevent the projection of said eaves and roof, and the drainage of water therefrom, to the great damage of the complainant's lot, buildings and improvements.
If A. erects a house immediately on the line which divides his land from that of B., and the eaves of the house are made to project over the land of the latter, this is a manifest encroachment upon his property, and an appropriation thereof to the use of another, to the extent of the projection, at least. And twenty years acquiescence by B. in the encroachment, without objection, or taking any steps to prevent its continuance, should be considered sufficient to lay the foundation for presuming a grant. Law of Easements, top pages 39, 121, 122 & 123, (Ed. of 1840.) The principle we have recognized, in 

 [*26]  regard to the user of lights for twenty years, does not apply to such a case, but that which is applicable [**45]  in relation to ways and other analogous subjects, must be the appropriate rule with reference to the question now under consideration.
The next inquiry is, whether the complainant, by proof, has shown himself entitled to relief by injunction, on account of the injury to the eaves of his house and the drainage of water therefrom, apprehended by him, if the wall commenced by the defendants should be erected.
When the bill was filed and the injunction issued the wall of the defendants was not up, but only commenced, the top of it then being far below the eaves of the complainant's building. The answer positively denies the right of the complainant to throw water from his spouts or eaves upon the lot claimed by the defendants; and insists that all the water from his roof and eaves, should naturally and conveniently pass into Liberty street. It also denies "any right of the complainant to throw water from his roof or spouts, upon the lot purchased by the defendants, in such wise, as to interfere with the improvement of their property, in the mode in which they are improving it."
It is deemed proper to say that in reference to how far the wall would, or would not, affect the eaves, [**46]  we are not at liberty to consider as evidence, what is stated in the opinion of the judge below to be his belief, based upon his own inspection of the premises.
There is evidence showing that the water from the roof and eaves of the complainant's back building had, for a long time, been discharged over the lot now held by the defendants. And some of the witnesses testify that the water which had been so discharged could not, conveniently, be made to pass off over the complainant's lot into Liberty street, but others say there would be no difficulty in doing so; one of them being Samuel Dryden, a witness for the complainant, and who lived upon lot No. 1, as a tenant, for many years prior to, and at the time of the sale, and when he was examined as a witness.
After a careful examination of the evidence contained in the 

 [*27]  record, we think it does not show, with sufficient certainty, to what extent the erection of the new wall, if carried up as designed, would interfere with the eaves, or whether such interference, would inflict, upon the rights of the complainant an important and irreparable injury, or such an injury as could not be fully compensated by an action at law, but [**47]  required the interposition of a court of equity to give full and adequate relief.
The injunction was dissolved on the 23rd of October 1854. The appeal was taken on the 28th of December following, and sent to the Court of Appeals on the 6th of April 1855; no appeal bond being given.
It is conceded on both sides, that after the dissolution of the injunction the defendants completed their wall. The precise nature and degree of injury sustained by the complainant, if any, in consequence of the erection of the wall, may now be fully ascertained; and the circumstances disclosed by the proof do not, in our opinion, show a clear case, urgently demanding a reversal of the decision below for the purpose of restoring the injunction. But we consider it more appropriately a case in which the complainant should be left to such redress in a court of law.
In Amelung & others, vs.  Seekamp, 9 G. & J. 468, the opinion of the court commences by saying: "In Snowden vs. Noah, 1 Hopkins' Ch. Rep., 353, it is stated as a general principle, that the writ of injunction is a most important remedy; but it is only used to protect rights which are clear, or at least free from reasonable [**48]  doubt." The court also express their concurrence in the views of Chancellor Kent, in Jerome & others, vs.  Ross, 7 Johns. Ch. Rep. 315, "that an injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong case of trespass, going to the destruction of the inheritance, or the mischief is remediless to entitle the party to the interference by injunction."
The Attorney General vs. Nichol, 16 Ves. 338, was a case 

 [*28]  in which the object was to restrain the erection of a wall above sixteen feet in height, the erection of which would obscure and darken the ancient lights of the Scottish Hospital. Lord Eldon held there might be cases of that class in which a court of equity could not interfere, and yet an action on the case might be maintained. He based the authority to relieve by injunction, upon the ground of material injury, and of that special and troublesome mischief requiring the application of a power [**49]  to prevent, as well as remedy an evil, for which damages, more or less, would be given in an action at law. Speaking in reference to this view of Lord Eldon, Chancellor Kent says, in Van Bergen vs. Van Bergen, 3 Johns. Ch. Rep. 287, "I have had occasion frequently, since I have been sitting in this court, to allude to this very doctrine, and to consider it as sound." And in Lord Eldon's decision we find him saying, "I repeat the observation of Lord Hardwicke, that a diminution of the value of the premises is not a ground; and there is as little doubt, that this court will not interpose upon every degree of darkening ancient lights and windows." See also Crabb's Law of Real Property, secs. 475, 476, 477 & 478, in 54 Law Lib. 2 Waterman's Eden on Injunction, 269, 270, ( 3 Ed.) Fishmongers' Co., vs. East India Co., 1 Dickens' Rep., 163 & 164.  Ray vs. Lynes, 10 Ala. 63. Hamilton vs. Ely, 4 Gill 34.
In the case of "Society for Establishment of Manufactures vs. Morris Canal Company," Saxton's Ch. Rep., 192, the Chancellor of New Jersey, says: "The power of the court to grant injunctions in cases of [**50]  nuisance will not be questioned.... But the exercise of the power must always rest in the sound discretion of the court, to be governed by the nature of the case. The case presented is peculiar; but it does not satisfy me of that pressing necessity, or that certainty of mischief which would authorize an interference in a matter of such magnitude."
In Adams' Equity, top page 487, in a note, (Ed. of 1855,) the principle stated is, that to authorize the court's interference by injunction, there should appear imminent danger of great and irreparable damage, and not of that for which an 

 [*29]  action at law would furnish full indemnity. In support of which doctrine numerous American authorities are cited.
Viewing the evidence, as it is before us, in connection with well established principles in regard to injunctions, we think the order dissolving the injunction in this case should be affirmed. And the decision having been made on a motion to dissolve and not upon final hearing, the cause will be remanded.
Order affirmed, and cause remanded. 

4 of 18 DOCUMENTS 

WILLIAM FERGUSSON and others, vs. WILLIAM T. BRENT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 9; 1858 Md. LEXIS 4 

June 2, 1858, Decided 

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

This was an action on the case brought by the appellee on the 3rd of May 1855, against the appellants, to recover damages for injury to certain goods which the plaintiff placed on board the defendants' vessel, the schooner Isabel, to be transported from Baltimore to Port Tobacco, in Charles county. The declaration charges that the defendants were common carriers, and undertook to transport and deliver the goods safely and securely. The defendants pleaded non assumpsit, upon which issue was joined.

1st Exception. The plaintiff proved that the defendants were common carriers and joint owners of the Isabel, and that, on the 28th of March 1854, he shipped on board the same, at Baltimore, sundry goods, in good order, to be carried for freight from Baltimore to Port Tobacco, and there delivered to the plaintiff in like good order, and that the goods were not so delivered, but some four or five weeks afterwards were delivered to the agents of the plaintiff at Baltimore, and that they were damaged, while on board the vessel, to the extent of $ 425.88.

The defendants then proved by Button, who was on board the schooner, that she [**2]  left Baltimore on the 28th of March 1854, between 10 and 11 o'clock, A. M.; that it had been raining in the morning, but was clear when they started; that after proceeding on their way, below the fort, a dense fog arose, between 1 and 2 o'clock, P. M., and the captain then made for North Point creek, and in entering this creek the captain was at the helm, with one of the hands as a look-out, and one sounding by throwing the lead; that in entering the mouth of the creek, the look-out called to the captain that there was a buoy ahead, and to keep off; the course the vessel was then standing would have carried her over the buoy; that the captain immediately altered the course of the vessel, and about thirty yards from the buoy, struck on a rock and sunk. They further proved by Lacey, a hand on board the vessel, that it had been raining the morning she left Baltimore, but when they left it was fair, and there was nothing in the signs of the weather which would have prevented their leaving harbor; that there was a light breeze from north-north-east, which was a fair wind down the Patapsco, and the tide was ebb; that after they had proceeded on their voyage as far as Fort Carroll, it became [**3]  calm, and a dense fog arose, between 1 and 3 o'clock, P. M.; that after a while a light breeze again sprung up, and the captain made for North creek harbor, the fog still continuing; that this harbor was on the route they were going, and the nearest harbor witness knew on said route, and that the wind was fair thereto; that in entering this harbor, about 4 o'clock, P. M., the captain was at the helm, and a look-out kept, and soundings made; that the look-out called out that there was a buoy ahead, and told the captain to keep off, which he did, and about thirty yards from and outside the buoy, the vessel struck on a rock and sunk; that this was a usual harbor for vessels to make when it was dangerous to remain out in the Patapsco, and that witness was not aware and never had heard of the existence of the rock; that a large number of vessels were in this creek for harbor at that time. Upon cross-examination, this witness stated that it was dark and raining and cloudy all the morning; that the Isabel started out with all sail spread, except the topsail and staysail, and that she went down through the fog without taking any of her sail in; that the rock upon which she was wrecked is at [**4]  the mouth of North Point creek; that he does not know whether this creek has any channel or not, that its mouth is a mile and a half wide, and that in low water, standing upon the vessel, he could see the rock under the water, which rippled over it. The defendants further proved by Captain Neale, that he commanded a vessel which navigated the Patapsco about twenty-five years ago, and that he would consider North creek harbor a proper and usual harbor for a vessel to make which was caught in a fog below Fort Carroll, and that he did not know of the existence of any rock in the mouth of said creek. Upon cross-examination, witness stated that he did not know of such places as Hawkins' point or Curtis' creek, on the Patapsco; that he only navigated this river for two or three years, and did not remember much about it.

The plaintiff then proved by R. H. Mitchell, that the day the Isabel left Baltimore, it was foggy and raining all day, the fog was very thick between 3 and 4 o'clock, and it was foggy in the morning, and that he has seen vessels and steamboats pass over the flats on the side of Fort Carroll, where the flats lie. By Captain Wm. A. Allston, who was in the habit of navigating [**5]  the Patapsco, that on the morning of the day the Isabel sailed, there was rain, but not much fog; it was a misting rain, such as usually precedes a fog; witness was in the Patuxent river at the time, about eighty miles from Baltimore, in command of his vessel, and about 9 or 10 o'clock in the morning, put into harbor, judging it would be bad weather, and not thinking it proper to venture upon the bay; that North Point creek is five or six miles from Fort Carroll, which fort is five or six miles from Baltimore; that Curtis' creek is about two or three miles above Fort Carroll, and from the fort to Curtis' creek, a north-east wind is a directly fair wind. By Vivian Brent, that on the day the Isabel left, it was misty and foggy all day, and that he noticed the character of the weather in going to his office, about 9 or 10 o'clock in the morning, and particularly in going from his office to dinner, about 2 or 3 o'clock; that he remembers the day from hearing a few days after of the wreck of the Isabel, when he remarked at the time, that the captain should not have sailed on such a day; that he has seen large Boston schooners sailing on the side of Fort Carroll, upon which the flats are;  [**6]  that Curtis' creek is about two or three miles from Fort Carroll, and a good harbor between Fort Carroll and Baltimore; that there is a cove directly opposite the fort, into which schooners sometimes put, and he has seen small vessels lying there, and that a north-east wind is equally favorable in going up or down the Patapsco.

Upon all the evidence the defendants asked the court to instruct the jury, that if they find from the evidence that the goods of the plaintiff were placed by him on board the Isabel, as a common carrier, and were either lost or damaged while on board, the plaintiff is entitled to recover to the extent of the damages he proves he sustained, unless they find from the evidence that the accident by which the damage occurred was inevitable, happened without fault on the part of the carrier, and which no human prudence could have enabled him to avoid. This instruction the court (ROBERT FORD, Special Judge,) refused to give, and to this ruling the defendants excepted.

2nd Exception. Upon all the testimony the court instructed the jury, that if they believe from the evidence that the defendants are joint owners of a schooner and common carriers between Baltimore [**7]  city and Charles county, and that the plaintiff shipped by the schooner of the defendants any goods and merchandise, in the port of Baltimore, to be transported to Charles county, and if the jury shall further find that such goods or merchandise, so shipped as aforesaid, (if they shall find the goods or merchandise were so shipped,) were, in the course of their transportation from Baltimore to Charles county, injured or damaged, the plaintiff is entitled to recover whatever the jury shall find, from the evidence, to be the extent of the damage so sustained, unless the jury shall further find that the loss or damage resulted from the direct and immediate act of God, without the intervention of any human agency. To this ruling the defendants excepted.

3rd Exception. The defendants, upon all the testimony, asked the court to instruct the jury that if they find, from the evidence, that the captain of the Isabel left Baltimore when there was nothing in the signs of the weather to threaten an interruption of his voyage, and that after proceeding upon his voyage below Fort Carroll, a dense fog suddenly sprung up, rendering it dangerous to proceed on his direct voyage, and that the harbor [**8]  of North Point creek was a harbor deemed safe, and usually resorted to in such cases, and under the circumstances of his position, the harbor most convenient to be resorted to, and that in attempting to enter said harbor, the vessel struck upon a sunken rock, unknown to the captain and to pilots or persons carrying on navigation upon the river Patapsco, and that the damages to such goods resulted from striking on said rock, and that in entering or attempting to enter said creek, the captain used every precaution available to him to harbor his vessel safely, then the plaintiff is not entitled to recover. This instruction the court refused to grant, and to this ruling the defendants excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action against a common carrier, it was proved that while the vessel was on her way down the Patapsco, a heavy fog arose, which induced the captain to make for North creek harbor, where there were many vessels safely moored at the time, and in approaching it he was at the helm with a lookout, who, as the vessel neared the entrance, notified him there was a buoy, whereupon he bore away, and the vessel struck upon a rock, about thirty yards from the buoy, and sunk, thereby damaging the plaintiff's goods. There was no bill of lading, and it was also proved that at low water a person standing on the vessel could see the rock under the water, which rippled over it. HELD:

That this was not an act of God, exonerating the carrier; the fact that a buoy was placed to indicate the dangerous spot, sufficiently shows that the existence of the rock was generally known, and it was the duty of the master to have known and avoided it.

Private carriers will be discharged by proof of loss by inevitable accident, but nothing will relieve the common carrier save an act of God or the public enemies, or that which arises from some event expressly provided for in the charter-party.

By an "act of God" is meant a natural necessity, which could not have been occasioned by the intervention of man, but which proceeds from physical causes alone, such as the violence of the winds or seas, lightning or other natural accident.

To relieve the carrier, the act of God must be the direct and immediate cause of the loss, and without which it would not have occurred; all circumstances produced by human agency must be excluded, so that if divers causes concur in the loss, the act of God being one, but not the proximate cause, it does not discharge the carrier.

The phrase, "perils of the sea," includes something more than is meant by "the act of God," such, for instance, as hidden obstructions in a river, newly placed there, and of a character that no human skill or foresight could have discovered and avoided.  

COUNSEL:
Frank H. Stockett for the appellants, argued:

1st. That the court below erred in refusing the instruction contained in the first exception. It is submitted that the evidence, as set out in this exception, shows conclusively that the loss was occasioned by running on a sunken rock, not known to the master, or to those generally navigating these waters, and by no fault or neglect on the part of the master, but [**9]  was one of those accidents which are called "inevitable," and "a casualty which no human prudence could foresee or provide against." The principle of law, that the carrier in this case is responsible, unless the loss occurred by "the act of God," is not controverted. All the English cases, from Coggs vs. Barnard, to the present time, including that of Forward vs. Pittard, 1 Term Rep., 27, decide this, and nothing more. The American authorities have followed these cases, and it is for this court to decide what accidents come within this term, "act of God," and if the mischance in this case is one of them. The English decisions afford but little light as to the opinions of their courts on facts similar to those of the present case, but we have abundance of light from our own writers, and the courts of this country, and if the principles here laid down have somewhat relaxed the unbending rigidity of the English cases, it is submitted they are more consonant to the rules of equity and justice, better adapted to the spirit of our laws, and better calculated to promote the expanded wants and demands of our commercial marine. The case of Smyrl vs. Niolon, 2 Bailey's Rep., 421, decides that [**10]  a loss caused by the boat running on an unknown snag in the usual channel of the river, is referable to the act of God, and the carrier will be excused. This case was affirmed in the same State by that of Faulkner, et al., vs. Wright, et al., Rice's Rep., 107, decided in 1838, where the boat was lost by running on a concealed and unknown snag. In this latter case Judge Richardson, though differing with the other judges in some of the principles of law, says: "The rule of law is plain; if the boat was unavoidably sunk, and the cargo thereby lost, the carrier is excused." The case of Williams, et al., vs. Grant, et al., 1 Conn. Rep., 487, comes up to the very case now before this court, and decides that "a common carrier is liable, under the general acceptance, for all losses, except such as are occasioned by the act of God, the act of the public enemies, or the act or default of the bailor himself. The term, 'act of God,' comprehends all misfortunes and accidents arising from inevitable necessity, which human prudence could not see or prevent. The striking of a vessel upon a rock not generally known, and not actually known to the master, is prima facie an act of God, for which the carrier [**11]  is not responsible." This case was decided in 1816, and the whole of the English and American cases then determined were considered and reviewed, and the principles here laid down, are those still recognized in the State where the decision was made, and in many other, if not all the States of the Union. The cases of Gordon, et al., vs. Buchanan, et al., 5 Yerger, 71, and Turney vs. Wilson, 7 Yerger, 340, referred to by the appellee, decide the same principle, that the carrier is responsible for all losses not occasioned by the act of God, or the public enemies, but neither case defines what is meant by the act of God. Even the case of McArthur vs. Sears, 21 Wend., 190, relied on by the appellee, is clearly within the same principle, that inevitable accident, without the intervention of man, excuses the carrier. In that case the boat was lost by pure human agency and human negligence, the act of God not being in the case at all; the loss was occasioned by want of the usual light from the light-house, which was owing to neglect, and the existence of a delusive light in the stranded vessel, which deceived the captain; both of these were human agencies, and not the act of God. The careful [**12]  reading of that case will satisfy the court that no new principles were intended to be announced, nor the cases heretofore cited overruled, but that the judge who delivered the opinion of the court, agreed with the case of Williams vs. Grant, as to what accidents were to be considered as coming within the definition of "the act of God." See, also, 6 Cowen, 266, Aymar vs. Astor, and Riley vs. Horne, 5 Bing., 217. The case of Colt vs. McMechen, 6 Johns., 160, held that the failure of the wind excused the master from loss under circumstances much less strong than those of this case. So, also, Elliott, et al., vs. Rossell, et al., 10 Johns., 1, decided that "for all losses not arising from inevitable accidents, or such as could not be foreseen or prevented," the carrier was responsible. There the loss was occasioned by a rock not in the regular channel, and the existence of which was known, and the judge very properly held the carrier liable, but he also held that if the loss had arisen from extraordinary occurrences, such as winds, storms, &c., the carrier would have been brought within the exception.

These decisions are sufficient to show the enlightened views of the courts of this [**13]  country on questions of loss similar to the present case. The elementary writers certainly sustain them. Chancellor Kent (3 Kent, 216,) lays down the rule, that carriers by water are liable as common carriers, in all the strictness and extent of the common law, unless the loss happens by means of one of the excepted perils, and which he defines to be such as do not happen by the intervention of man, nor are to be prevented by human prudence; and he then mentions some of the excepted cases, one of which is a rock or sand-bar. Story on Bailments, sec. 489, defines what is meant by "the act of God," to be "inevitable accident or casualty," and in sec. 492, he explains what casualty excuses the loss, and, also, in secs. 513, 514. In sec. 511, he refers to, and approves of, the law as laid down in Williams vs. Grant, and in sec. 516, the very case of loss by a sunken rock, not generally known, is attributed to the act of God. See, also, Abbott on Shipping, ch. 4, sec. 6. It is not denied but that the onus of proof rests on the carrier to show that the loss was within the excepted cases, under the expression, act of God, but if he proves that the loss was occasioned by one of those occurrences [**14]  which are termed the acts of God, prima facie he discharges himself, and the onus that the alleged cause or agency would not have produced the loss without his negligence, is thrown upon the plaintiff. 4 Binney, 127, Bell vs. Reed, et al. 2 Watts, 114, Hart vs. Allen, et al. 8 Watts, 479, Reed vs. Dick. 3 Mass., 481, Putnam vs. Wood. And in Williams vs. Grant, it is decided that the striking of a vessel upon a rock not generally known, and not actually known to the master, is prima facie an act of God, for which the carrier is not responsible. This is the present case, and the plaintiff has entirely failed to remove the onus thus thrown on him, by producing evidence of the carelessness, ignorance or omission of duty on the part of the master. The only case in this State having any bearing on the principles of law discussed in this cause, is that of Boyle vs. McLaughlin, 4 H. & J., 291, relied on by the appellee as deciding this cause. A careful examination of that case will show that the law, as there laid down, applies very remotely to the facts of this, and can by no means be considered as conclusive of it. This is, in fact, a new case in this State, and it is for the court now,  [**15]  for the first time, to lay down the rules which shall hereafter govern cases of this kind, as to the liabilities of carriers for losses caused by inevitable accidents, and it is submitted that, in coming to their decision, they will rather lean to the opinions of the courts of this country than those of England, even if it can be shown the latter would exclude this from the excepted cases of losses.

2nd. That the court erred in granting the instruction contained in the second exception. 1st. It was wrong, in point of law, upon the authorities and reasons already referred to in the first exception. By it the judge directs the jury to find for the plaintiff, unless they shall find "that the loss or damage resulted from the direct and immediate act of God, without the intervention of any human agency." It is believed that no authority in this country can be found laying down any such strict rule of liability, and it has already been shown by numerous authorities, and especially by the case of Williams vs. Grant, that loss consequential upon the act of God, may be such as will excuse the carrier. It is true, the sunken rock was the direct act of God, but that it was not the immediate [**16]  and necessary cause of the accident, for it may have stood there a thousand years before any vessel was wrecked on it. The loss of the vessel was merely the consequence of running on it. 2nd. This instruction was calculated to mislead the jury. All the authorities agree, that to excuse the carrier, the loss must be ascribed to the act of God, but the cases already referred to, show how these words are understood as meaning "inevitable accidents," and "casualties which no human foresight could anticipate, or human prudence avoid." All these excepted cases were, by the stringent terms of this instruction, excluded from the consideration of the jury, and they were not only permitted, but directed, to apply those words, "direct and immediate act of God," in their most literal and narrow acceptation, and were deprived of all power to consider the loss occasioned by the striking of the vessel on a sunken rock, in the usual channel, and unknown to the master, as within the excepted cases, or excusing the carrier. And by this instruction, the jury were also excluded from all consideration of the conduct of the master, whose skill or care, negligence or omission of duty, it is their exclusive [**17]  province to judge of. 10 Johns., 1, Elliott et al., vs. Rossell, et al. 6 Johns., 160, Colt vs. McMechen.

3rd. That the court erred in rejecting the appellants' second prayer, which is the ground of the third exception. This prayer is more specific in its terms, and brings the case more directly within the American cases already referred to, than the prayer first offered, and the ruling of the court upon it cannot be sustained, but by overruling or disregarding the whole current and effect of these decisions. The prayer embodies the very principles decided in Williams vs. Grant, as to the sunken rock, unknown to the captain and pilots, or persons carrying on navigation on the river, bringing the present case much more within the class of excepted cases to excuse the carrier, than the one there decided. But it is said, there was no evidence to support many of the conclusions to which the prayer assumes the jury may come. A careful examination of the evidence will, it is thought, satisfy the court of the contrary. Again, it is said this prayer should not have been granted, because the appellants prove the harbor was a safe one, and that by the act of the captain the vessel was forced [**18]  upon a rock in the entrance of this harbor, where there was a buoy to direct him, and warn him of the danger. That the harbor was a safe one, is certainly a part of the appellants' case, because they could not be excused, if the captain, in seeking to enter an unsafe harbor, had sunk the vessel. But that the vessel, by the act of the captain, was forced upon the rock, they certainly deny, and the proof is, that he used every precaution, but did not know of the existence of the rock; and they insist that the running of the vessel upon it, was an inevitable accident, which he could not see, or provide against. In the case in 2 Bailey's Rep., 421, it was shown that the passage of the river was safe, and just previous to the accident to the boat in that case, another vessel had passed in safety, the lost boat not following the channel, but being nearer the shore, when the accident occurred; but the court said the loss was occasioned by an accident which could not have been foreseen, and being referable to the act of God, the carrier was excused. The appellants also deny that there was a buoy to direct the master, and warn him of the danger. On the contrary, in avoiding the danger pointed [**19]  out by the buoy, the vessel was run on a hidden rock, which must be presumed (in the absence of proof to the contrary on the part of the plaintiff) to have been equally unknown to those who fixed the buoy, as to the master.

Alex. B. Hagner and Alex. Randall for the appellee:

1st. By the prayer contained in the first exception, the court was asked, in substance, to instruct the jury that if they found that the loss resulted from inevitable accident, they ought to find for the defendants. No such instruction has ever been given in any action against a common carrier, for injury to goods entrusted to his care. The law, as laid down in every decision and elementary work on bailments, is, that a common carrier is responsible for all accidents to goods entrusted to him for transportation, except such as arise from the act, 1st, of God; 2nd, of the public enemy; and 3rd, of the owner of the goods. The fault of the proposed instruction is, that under it, the jury were authorised to excuse the carrier, though there might be no evidence that the loss resulted from either of these causes. The books are full of cases in which the common carrier has been held responsible for losses from [**20]  "inevitable accident." In 2 Greenlf. on Ev., sec. 219, the position is thus stated: "It is ordinarily a good defence for a private carrier, that the loss was occasioned by inevitable accident, but a common carrier is responsible for all losses and damages, except those by the act of God, or by public enemies." It is competent for the court, in a proper case, to say that certain inevitable accidents, under the circumstances, should be considered as the act of God; or that the facts proved in the particular case, disclose a sufficient excuse for the carrier, under the law. But the proposed instruction is in neither of these forms, and is, in fact, an attempted repeal of the law, as it has been declared to be, ever since the time of Henry VIII. There may be inevitable accidents which could never be ascribed to the act of God, but are wholly attributable to human agency. It is true some inevitable accidents are said to be the result of the act of God, but it does not follow that every accident, which is inevitable, is of that character. Every loss resulting from the act of God, is produced by an inevitable accident, but it is by no means true that every inevitable accident constitutes [**21]  the act of God. The carrier is exonerated, not because the accident causing the loss is inevitable, but because this inevitable accident is of such a peculiar character as to be considered the act of God. Nor will it avail the appellants to argue, on this point, that the facts set forth in the exception prove that the loss was, in fact, the result of the act of God. The question for the court to decide is, whether the proposed instruction correctly stated the law on the subject? If it did not, the opinion of the court below will be affirmed. In the case of Murphy vs. Staton, 3 Munf., 239, the court had granted an instruction exonerating the carrier for a loss on the upper James river, upon the ground that the navigation was attended with so much danger that the loss might have happened, notwithstanding the utmost endeavors to prevent it, and although the captain may have possessed competent skill, used due diligence, and provided hands of sufficient strength and experience. This was, in fact, an instruction like that under examination; but it was reversed on appeal, and the decision of the Court of Appeals adopted, in the subsequent case of Friend vs. Woods, 6 Grattan, 189. The proposed [**22]  instruction also speaks of the accident as being one "which no human prudence could avoid." The case of Smyrl vs. Niolon, 2 Bailey, 423, cited by the other side, seems to determine the impropriety of this part of the instruction. The judge says: "In the case of the Steamboat Co. vs. Bason, Harp., 262, an exception is introduced, as additional to the act of God, or the enemies of the country, as where the loss could not be guarded against by human skill and prudence. This, however, is improperly stated as constituting another case of exemption. If it is not actus Dei, it cannot excuse."

2nd. We will next consider the third exception. We first object to the form of the proposed instruction contained in this exception, upon the ground that it was calculated to mislead the jury, by assuming there was proof before them upon several points, as to which there was no proof whatever. 1st. There is no evidence "that there was nothing in the signs of the weather, when the captain left Baltimore, to threaten an interruption of the voyage." All the witnesses agree that the morning was rainy and misty, and two of them prove that the whole day was foggy, and unfit for the vessel to leave port.  [**23]  Nor does any witness say that the fog "sprung up suddenly," as is expressed in the prayer. 2nd. There is no evidence that "North point harbor was the harbor most convenient to be resorted to, under the circumstances." It is proved that Curtis' creek harbor was three or four miles nearer, and that the wind was fair to it. 3rd. The prayer speaks of a sunken rock. It was proved that, at low water, the witness, standing on the vessel, could see the rock under the water, which rippled over it, and it is also proved that it was low water when the vessel struck. The rock was not, therefore, sunken, that is, hidden, at the time of the accident. In Johnson vs. Friar, 4 Yerger, 50, much stress was laid on the fact that no ripple was visible on the river, and that, therefore, the snag was to be considered as sunken. But, in this case, the ripple of the water was perceptible from the vessel. 4th. There is not the slightest proof that "the captain, or pilots," did not know of the position of the rock. 5th. The prayer authorises the jury to find that the captain "used every precaution available to him to harbor his vessel safely." There is no proof what precautions were proper to be used, or how [**24]  far they were available to him. There was no proof to show why he could not have consulted the minute charts of these waters, published by the Government, or why he could not have shortened sail in such a fog, or why he could not have taken the proper side of the buoy, which plainly warned him of his danger. These would seem to be the usual and necessary precautions, under the circumstances, and were not adopted by the captain.

But we object, secondly, that the facts enumerated in the prayer, even if the jury had been justified in finding them, do not present a case excusing the carriers. This leads us to consider what is the legal interpretation of the phrase, "act of God," and whether the loss, in this case, should be attributed to that cause? It would seem, upon principle, to be a question of easy solution, for the phrase, by its very terms, excludes the idea of human agency in producing the result. In fact, all uncertainty as to its signification, is produced by confusing matters intrinsically distinct. No one can doubt, for example, that if a sound ship is destroyed by lightning, the cause of its destruction is the act of God; and, on the other hand, if the destruction is [**25]  produced by the pilot steering her upon a well known rock, that it is not attributable to that cause. And yet it might be argued that the rock was placed there by the act of God, and that the accident occurred by his decree. But this is confounding matters quite distinct, and has been well termed a mahometan extension of the phrase in question. The confusion arises from not distinguishing between post hoc and propter hoc. It is condemned alike by the most ancient and most recent authorities. "It were infinite," says Lord Bacon, in Maxims of the Law, (Law Tracts, 35,) "for the law to judge the causes of causes, and of their impulsions on one another, and, therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." The true inquiry is, was the cause one "which could not happen by the intervention of man?" was it "produced immediately without the intervention of any human cause?" 1 Term Rep., 27, Forward vs. Pittard. Story on Bailments, sec. 511. "By the act of God, is meant a natural necessity which could not have been occasioned by the intervention of man, but proceeds from physical forces alone, such as violence of [**26]  winds, lightning, or other natural accident." 2 Greenlf. on Ev., sec. 219. In the note to Coggs vs. Barnard, 1 Smith's Lead. Cases, 43 Law Lib., 180, 181, the phrase is thus defined: "The true notion of the exception is, those losses that are occasioned exclusively by the violence of nature, by that kind of force of the elements which human ability could not have foreseen or prevented, such as lightning, tornadoes," &c., "it certainly is restricted to the act of nature, and implies the entire exclusion of all human agency." "The principle that all human agency is to be excluded from creating or entering into the cause of mischief, in order that it may be deemed the act of God, shuts out those causes where the natural object in question is made a cause of mischief solely by the act of the captain, in bringing his vessel into that particular position where alone that natural object could cause mischief: in the cases in question, it was the act of the captain that imparted to the natural objects all the mischievous qualities that they possessed; for rocks, shores, currents, &c., are not, by their own nature, and inherently, agents of mischief, and causes of danger, as tempests, lightnings,  [**27]  &c., are; the danger, therefore, sprang from human agency." This doctrine is quoted with approbation in Fields vs. Woods, 6 Grattan, 189, where it was held that the act of God, which excuses the carrier, must be a direct and violent act of nature. In that case, a carrier stranded his boat upon a bar recently formed in the ordinary channel of the river, of the existence of which all in charge of the boat were ignorant, and yet he was held liable, because by human foresight and diligence, the existence of the bar might have been ascertained and avoided. The same doctrine is recognised in McArthur vs. Sears, 21 Wend., 190, where the accident was caused by the pilot mistaking a light on a stranded steamer, which had been wrecked by a tempest, for one on the shore, of which wreck the captain knew nothing, and the night, too, was snowy and unusually dark, causing the mistaking of the lights, and yet the court held that "there was such an admixture of human means as vitiated the defence" that the loss was the result of the act of God.

The appellants' counsel refers to several cases which, he contends, establish a less stringent rule as to the liability of carriers. Before examining these [**28]  cases, we call the court's attention to the fact that, in this case, no "bill of lading" was offered by the captain, which always contains an exception of "the perils of the sea," or some equivalent expression. That these words, "perils of the sea," are of much broader compass than the words, "act of God," is established by the following authorities: 12 Georgia, 578, Brown, et al., vs. Clayton. 43 Law Lib., 180. 6 Grattan, 192, Friend vs. Woods. Rice's Rep., 116, Faulkner vs. Wright. 4 Yerger, 50, Johnson vs. Friar. 5 Yerger, 81, Gordon vs. Buchanan. 21 Wend., 198, McArthur vs. Sears. There is one case in which a contrary opinion is announced, that of Williams vs. Grant, 1 Conn., 487, though not by the court. One of the judges, who delivers a separate opinion, asserts that such is not the law, but he stands alone, against all the authorities. That this view is correct, appears from the consideration that, under the terms "perils of the sea," losses from the accidental collision of ships, and from the sinking of the ship from a hole eaten into it by rats, are excepted. Of course such losses could not be ascribed to the act of God, or the public enemy, and the carrier would be held liable [**29]  but for the bill of lading. In every case cited by the counsel on the other side, there was a bill of lading containing an exception of "the dangers of the sea," or its equivalent expression, and the passages quoted by him from the elementary writers, are extracted from sections which are treating of "the perils of the sea." As this expression is an additional exception in favor of the carrier, which does not exist in the present case, those authorities cannot control the court here, even if the facts were similar. But even in cases where a bill of lading was received, the courts have held the carrier liable upon a much stronger state of facts in extenuation than those of this case. 21 Wend., 190. 1 Murphey, 417, Williams vs. Branson. 8 Watts & Sergt., 44, Whitesides vs. Russell. In 7 Yerger, 340, Turney vs. Wilson, it is said, that "the boatman is liable, as a common carrier, for all losses not occasioned by the act of God, or the public enemy, but certain events may be provided against in the contract, and then the carrier will not be liable for them." In that case, the exception of "the dangers of the river," in the bill of lading, was held to exempt the carrier from loss resulting [**30]  from all hidden obstructions in the river, as rocks, logs, &c., which could not be foreseen, or avoided by human prudence, &c., thus showing that losses from such obstructions would not excuse him under the defence of the act of God. Yet, in that case, he was held liable, because he did not show that the loss resulted from some cause which human skill and foresight could not avert. In a case of a bill of lading, the exception of "the perils of the sea," only excuses such losses as arise "from irresistible force, or some overwhelming power which cannot be guarded against by the ordinary exertion of human skill and prudence." Story on Bailments, sec. 512, a. It is impossible to deny that ordinary skill and prudence would have enabled the captain, in this case, to have avoided the rock. Other vessels had done so, and were safely moored in the creek, at the time; and if he had been acquainted with the channel, and skilled in his business, he could have entered it safely. Being ignorant of the navigation, his employers must pay the penalty. "A loss directly and immediately occasioned by the ignorance or inattention of the master or mariners, is not deemed a loss by the perils of the sea.  [**31]  " Story on Bailments, secs. 512, a, 518. The presence of a buoy, placed by the United States' officers in a frequented harbor, and appropriately marked, was the fullest notice, to an experienced captain, of the presence of danger, and no master would be allowed to defend himself from responsibility by pleading his ignorance of a buoy which was apparent to all trading near the place. If he was ignorant in spite of this information, his employers must suffer for it. "If the situation of the rock is generally known, and the ship is not forced on it by tempests, &c., the loss is imputed to the fault of the master, whether it arises from not taking a pilot, or his own unskillfulness or ignorance." Though the rock may not have been known to the witness, Lacey, who was then, for aught that appears in the record, on his first voyage, nor to Captain Neale, twenty-five years before, still the placing of the buoy there had made it universally known. Suppose a light-house had been built upon it, and the captain, notwithstanding, had run against that, would the appellants be permitted to contend that the rock was not known to persons navigating the river? The buoy is to serve the same purpose. If [**32]  he had lost the goods by running on the buoy, could he be excused upon pretense that its position was not known to persons navigating the river?

But apart from bills of lading, the cases cited on the other side are distinguishable from this. That in 2 Bailey, was decided on the ground that the frequent freshets and continual changes of the rivers of that State, constituted an exceptional case, which could be guarded against by no human skill. The case of Steamboat Co. vs. Bason, places these cases upon the peculiar character of these rivers, and that such was the ground of the decision, is clear from the ruling of the same court, in Ewart vs. Street, 2 Bailey, 157, which sustains the strict rule of the common law, being a case not happening on a river of that State. The case of Williams vs. Grant, is overruled by all the later cases, and in terms by McArthur vs. Sears, and with entire propriety. The captain, in broad day, in fine weather, ran his vessel upon a rock so well known as to have received a particular name, and yet the court held him exempted, if the jury should believe he did not know of its existence. The Supreme Court of the State did not condemn this instruction [**33]  as unqualifiedly as they should, but as it appeared that the vessel was out of the usual channel, that the master was ignorant of the navigation, and had no pilot on board, they held the verdict for the defendant wrong, and awarded a new trial, upon the ground that though the situation of the rock was unknown, yet "it did not appear but that the running of the vessel upon the rock, might be attributed to the negligence of the captain." They also held that the instruction was faulty, because it did not particularly call upon the jury to take into consideration the ignorance of the captain, the improper position of the vessel, &c. Upon this ground, the present instruction was equally faulty, and was properly rejected.

3rd. The appellants object to the instruction granted by the court in the second exception, because it was wrong in law, and on this point assert, that "loss consequential upon the act of God, may be such as will excuse the carrier." We submit that such a doctrine is at variance with all the authorities. In Smith vs. Shepherd, referred to in Story on Bailments, sec. 517, it was held, that the act of God, which would excuse the carrier, must be immediate, and not remote.  [**34]  So in the case referred to in sec. 519, the frost, the act of God, cracked the boilers, and the goods were injured by the escape of the steam; but it was held, that the connection between the frost and the injury was too remote to exempt the carrier. The case in 6 Grattan, 192, declares that the act of God, which excuses the carrier, must be a direct and violent act of nature, implying the entire exclusion of all human agency. Such is the language of the court in 2 Bailey, 157. See, also, 1 Murphey, 173, Backhouse vs. Sneed, and 43 Law Lib., 180. The case of Boyle vs. McLaughlin, 4 H. & J., 300, is full to the point. There the flour of the plaintiff was placed on a wharf by the carrier, and, while there, was damaged by a sudden rise in the creek, which, it was claimed, was the act of God. But the court held that the defendant should have removed the flour to a place of safety, that the loss was not occasioned altogether by the act of God, and, therefore, that the defendant was liable. "The carrier takes upon himself the knowledge and hazard of all the difficulties and perils of the route in which he proposes to go, except those proceeding immediately and solely from the act of God,  [**35]  or the enemies of the country," (page 302.) In that case the court instructed the jury that the defendants were chargeable, if they believe the loss was occasioned by the unskillful navigation of the vessel, or any other circumstance which could not be deemed the immediate and distinct act of God, or of the public enemy. That is the only reported case in Maryland upon the subject, and it is submitted that it contains the true exposition of the law, as in force in this State. In 1853, the subject was carefully considered in the case of New Brunswick Steamboat Co. vs. Tiers, et al., 4 Zabriskie, 697. In that case, while the carrier's barge was moored at a wharf, a violent storm arose, which produced an unusually low tide, so that the barge was driven, by the wind, against a piece of timber which projected from the wharf, thirteen feet below the ordinary low water, the existence of which was unknown to the carrier, and this caused the loss. The court there say: "If divers causes concur in the loss, the act of God being one, but not the immediate or proximate cause, such act of God does not excuse the carrier; to have this effect, it must be one exclusive of human agency." The English [**36]  law on the subject is set forth in the recent case of Oakley, et al., vs. Portsmouth, &c., Steam Packet Co., 34 Eng. Law & Eq. Rep., 530, which is very strong in our favor. In Edwards on Bailments, the whole doctrine for which we contend is adopted, and the 5th Edition of Story on Bailments, corrects the text of the former editions, wherever it tended to support the opposite theory. If the act of God combined with such act of man as could have been avoided, the carrier is liable. It may be true, the vessel would not have sunk but for the rock, but it is equally true, the rock would not have injured the vessel, if the captain had managed her properly. He set at naught every rule of prudence by his conduct in leaving harbor in foggy weather; in continuing under full sail in foggy weather; in neglecting to anchor near Fort Carroll, where, it is shown, he would have been safe; in having no chart of the river, or not consulting it, if he had; in not going into one of the nearer harbors, instead of this one, if he thought it necessary to leave the river; in not being careful to follow the direction of the buoy; and in almost every respect in which neglect could exhibit itself. Such is the [**37]  case made by the record, and it seems irreconcilable with any other idea, except that he was resolved to reach the Potomac as soon as possible, to get another load of freight, and was determined to run the risk of accident, in putting out in the then state of the weather.

The appellants' counsel also contends that this instruction had a tendency to mislead the jury, but we cannot perceive the force of the objection. The whole case was submitted to the jury, who were bound to consider all the evidence. If the question of the skill of the master was not brought before them with sufficient prominence, the fault was in the defendants, who should have introduced evidence establishing his competency to navigate a vessel in those waters. On the other hand, it is clear the jury would have been misled, if the judge had not pointed out, with precision, the description of accident which is considered by the law as exempting the carrier.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*29]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought to recover damages for the injury which certain articles of property, belonging [**38]  to the appellee, sustained, while on board the vessel of the appellants, on which they had been placed, for transportation from Baltimore 

 [*30]  city to Charles county, in this State. The appellants were common carriers, and, as such, received the goods of the appellee for transportation. The plaintiff proved the shipment, the amount of damage, and that on the day the vessel left the port of Baltimore, the weather, in the opinion of his witnesses, who testified to its character, was such that the captain ought not to have sailed. The defendants gave evidence to show that the weather was misty at the time when the vessel sailed, and that, during the day, a heavy fog arose, which induced the captain to make for North Point harbor; that in this harbor there were many vessels; that in approaching it, he was at the helm, with a look-out, who, as the vessel neared the entrance, notified him there was a buoy, whereupon he bore away, and struck upon a sunken rock, about thirty yards from the buoy, and there sinking the vessel, which occasioned the damage complained of. There was evidence, by different witnesses, showing there were other harbors nearer to the vessel, when she was put in [**39]  the direction of North Point harbor, than that one, and, also, that the sunken rock was unknown to persons who had navigated the Patapsco river; and, also, that at low mark, the ripple of the water would enable a person standing on the deck to discover its locality. This, in substance, was the evidence in the cause, and, on it, the defendants asked the instructions of the court in the manner detailed in their prayers, but the court refused so to instruct the jury.
Before adverting to the language of these prayers, and to the instructions given by the court, we shall, as plainly as we can, point out the liability which a common carrier is under, for, on its ascertainment depends the propriety of the action of the Circuit Court in the premises.
There is no evidence in the record of a bill of lading, and, therefore, the responsibility of the appellants depends upon the law as applicable to common carriers, strictly as such.
There is a distinction in the law as applicable to private and common carriers. What we have to deal with in this case is, the law governing the liabilities of common carriers.
The cases in which this question has been considered, both 

 [*31]  in this [**40]  country and in England, are almost without number; the leading ones being very fully commented upon in subsequent cases, and by all the approved commentators on the law of shipping. And it is agreed, on all hands, that nothing will relieve the common carrier but an act of God, or the public enemies; or that which arises from some event expressly provided for in the charter-party. It is difficult exactly to define, in all cases, what is an act of God. "By the act of God, is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone; such as the violence of the winds or seas, lightning, or other natural accident;" per Ld. Mansfield, in Forward vs. Pittard, 1 Term Rep. 27. 2 Greenlf. on Ev., sec. 219. This definition is about as accurate and specific as, perhaps, any that could be given. It excludes all circumstances produced by human agency, so that if divers causes concur in the loss, the act of God being one, but not the proximate cause, it does not discharge the carrier. To relieve him, the act of God must be the immediate cause of the loss, and without which it would not have occurred.  [**41]  This is the law (in the absence of a contract to the contrary) applicable to common carriers; private carriers will be discharged by proof of loss by inevitable accident; but with this distinction we have nothing to do in this case, because here the defendants were common, and not private, carriers; besides which, there is no special contract exempting them from the operation of the general doctrine, which is rigorous, to the greatest degree, in its exactions upon the carrier. We, as a judicial tribunal, have nothing to do with its policy; our duty is to enforce it. We are, however, fully satisfied it is founded in good sense, and approved by the concurring experience of maritime nations.
In the case before the court, the exemption from liability can only be claimed, from the evidence, on the following grounds: 1st. That it was prudent and proper the vessel should have retired to North Point harbor. 2nd. That, in entering the mouth of that harbor, all care and skill possible were employed, by the master and crew, to guard against injury. And 3rd. That the rock on which the vessel was 

 [*32]  thrown, was concealed and unknown, so as to make the loss one occasioned by [**42]  the act of God, or of inevitable accident. Unless these circumstances, if found by the jury, constitute a defence, then there was none. We have already said, that in the case of a common carrier, and in the absence of an agreement to the contrary, inevitable accident can have nothing to do with the case. The case of Williams, et al., vs. Grant, et al., 1 Conn. 487, if susceptible of the construction placed upon it by the counsel of the appellants, we have only to remark, that, with a single exception, the case in 2 Bailey, S. C. Rep. 421, it is opposed to all others of authority. But we think it can be reconciled with them. In the case in 1 Conn., the vessel, while on her passage, run against a rock, in Providence river, under a moderate breeze, in fair weather, and bilged, so that the salt on board was lost. The plaintiffs, the owners and shippers of the salt, proved the rock was well known, and that the vessel, when she run against it, was out of the usual course of navigation; and that there was no pilot on board, although it was usual to have one. The defendants, on their part, produced evidence to prove that the rock was not generally known. The [**43]  court charged the jury, that if they should find, from the evidence, that the rock was generally known, the loss would be imputable to the negligence of the defendants, and they must return a verdict for the plaintiffs; but if they should find it was not generally known, then the loss was occasioned by a peril of the sea, and their verdict must be for the defendants. The jury found a verdict for the defendants, and a new trial, on the part of the plaintiffs, was moved for.
On the argument of this motion, which was granted, the court lay down--after asserting the broad doctrine to which we have referred, as governing this case--the principle controlling the one before them. Judge Swift, C. J., says: "If the rock on which the vessel was struck, had been generally known, then it was the duty of the master to have known and avoided it, and the loss would be imputable to his negligence. If the situation of the rock was not generally known, and the master did not actually know it, then, if he conducted properly in other respects, and no fault was imputable to him, his 

 [*33]  striking on the rock would be an act of God, an unavoidable accident, and he would not be liable for [**44]  the loss." Judge Gould says: "It is very clear that a common carrier is liable, under a general acceptance, for all losses, except such as are occasioned by inevitable accident, the act of public enemies, or the act or default of the bailor himself." Again: "By 'dangers of the sea,' are meant no other than inevitable perils, or accidents, upon that element; and, by such perils or accidents, common carriers are prima facie excused, whether there is any such express exception or not." This last quotation from his opinion, is in relation to the words, "dangers of the sea," contained in the bill of lading.
It will be seen that both of the judges use the expression, "inevitable accident," as synonymous with that of "act of God." And, by affixing no other meaning to it, they assert no new principle, and, therefore, those opinions are to be read as though the words, "act of God," had been used instead of those employed, to convey the same idea. It is true, that every "act of God" is an inevitable accident, because no human agency can resist it; but, because it is so, it does not, therefore, follow, in the sense of the books, that every inevitable accident is an act of [**45]  God. Damage done by lightning is an inevitable accident, and also an act of God, but the collision of two vessels, in the dark, is an inevitable accident, but not an act of God, such as the stroke of lightning, nor is it so considered by the authorities. Whether Judge Gould be correct, or otherwise, in his definition of the words, "perils of the seas," it is unimportant to inquire now, inasmuch as there is no bill of lading in this case, containing these words. His interpretation of them, however, is in conflict with the opinions of others. See the very full and discriminating note on common carriers, by Hare and Wallace, to the case of Coggs vs. Bernard, 1 Smith's Leading Cases, page 268, &c., edition of 1852, and particularly the case of McArthur & Hurlbert, vs. Sears, 21 Wend. 190. In Gordon vs. Buchanan, 5 Yerger 71, 82, the act of God, it is said, "means disasters with which the agency of man has nothing to do, such as lightning, tempests, and the like." "The perils of the sea" include something 

 [*34]  more; "many disasters which would not come within the definition of the act of God, would fall within the exception. Such,  [**46]  for instance, as losses occasioned by hidden obstructions in the river, newly placed there, and of a character that human skill and foresight could not have discovered and avoided." In the note referred to, will be found many cases wherein is clearly pointed out the difference between the words, "act of God," and "perils of the sea."
In the case before us, the undisputed evidence was, that a buoy pointed out the locality of the rock, and that at low mark it could be seen by the ripple of the water over its surface. It is also proved, by the defendants, that several vessels were safely moored in the harbor, at the time of the loss. The fact that a buoy was placed to indicate the dangerous spot, is, in our judgment, sufficient to establish that the existence of the rock was "generally known," and, in the language of Swift, C. J., in the case cited, "it was the duty of the master to have known and avoided it." We can perceive of no more effectual mode of making proclamation of the course of channels, the location of bars, rocks, and other impediments to navigation, than buoys; they are the means employed by all commercial nations, for the protection of human life, and the safety [**47]  of commerce.
Having thus stated the law as ruling this case, we apply it to the prayers of the defendant, and to the instruction given by the court to the jury. The first prayer was properly rejected. It excuses the defendants, if the jury should find the loss was occasioned by inevitable accident, without fault on the part of the carrier, and which no human prudence could have enabled him to avoid, which we have shown, in the case of a common carrier, is insufficient. If it is not actus Dei, it cannot excuse. The second prayer is also defective in several particulars, but one of which need to be stated, namely, it is unsustained by the evidence. There is no proof that the sunken rock was unknown to "pilots carrying on navigation upon the Patapsco river." Captain Neale speaks of a period twenty-five years previously to the accident, and, in fact, shows, by his cross-examination, that he knew but little of the 

 [*35]  navigation of the river. As to the hands on board, their testimony shows they knew nothing of the other and more convenient harbors; but, above all, the buoy gave, or ought to have given, knowledge of the rock to the master, and he should have avoided it.  [**48]  We think the court gave the proper instruction, which, upon the jury finding the necessary facts, excused the defendants, only, if the jury should further find "the loss or damage resulted from the direct and immediate act of God, without the intervention of any human agency."
Judgment affirmed. 

5 of 18 DOCUMENTS 

THOS. WILSON & CO., vs. THOS. J. CARSON & CO., Garnishees of E. WEBB, MAXCY & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 54; 1858 Md. LEXIS 6 

June 2, 1858, Decided 

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

Attachment on warrant issued out of the Superior Court of Baltimore city, on the 3rd of January 1854, at the instance of the appellants, citizens of Maryland, on a claim due them by E. Webb, Maxcy & Co., citizens of Kentucky, for $ 4847.96, and, on the 4th of January 1854, laid in the hands of T. J. Carson & Co., as garnishees, who appeared to the writ and pleaded non assumpsit and nulla bona, upon which issues were joined.

Exception. By the admissions and poof in the case, it appears that the plaintiffs were citizens of Maryland, that the garnishees, Thos. J. Carson, Jos. Carson and Saml. C. Edes constituted the firms of T. J. Carson & Co., and Carson & Edes, the former doing business in Baltimore, and the latter in New York, and both firms being one concern; and that the defendants, Ezra Webb, Wm. Maxcy and Thos. G. Rowland constituted the firm of E. Webb, Maxcy & Co., which did a general factorage, commission and brokerage business in Louisville, Kentucky, and all the members of this firm, together with Wm. Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxcy & Co., of Louisville, which pursued exclusively a slaughtering [**2]  and pork-packing business, the former being the financial and shipping agents of the latter firm; that these two last mentioned firms failed in business, and, on the 31st of December 1853, all the members of both united in a deed of trust or assignment to Wm. Riddle, of Louisville, the provisions of which are as follows:

It conveys to the trustee a large amount of real estate in Kentucky, belonging to said Wm. Maxcy, individually, and his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to said T. G. Rowland, individually, also certain slaves belonging to him, and his household and kitchen furniture; all the said Wm. Teeter's estate, real, personal and mixed; all the household and kitchen furniture of said E. Webb; certain real estate in Kentucky belonging to said E. Lewis Stoll, individually, and his interest in a certain tannery in Louisville; all the warehouse furniture of said E. Webb, Maxcy & Co., and the lease of the warehouse; all the accounts, debts, rights, choses in action, and personal property set out particularly in paper M., No. 1, made part of the deed; one hundred and sixty hogsheads of tobacco; all their interest in [**3]  two hundred and seventy-two boxes of manufactured tobacco, shipped by E. Webb, Maxcy & Co., to Penn & Mitchell, of Baltimore, and for which the latter gave their acceptances; all the shipments of produce mentioned more particularly in said paper M., No. 1, and on the faith of which the acceptances of the consignees were given; all said Rowland's interest in the Farmers tobacco warehouse; and certain plank belonging to Teeter, Maxcy & Co.; in trust to sell and convey all said property, collect all the debts and choses in action, and out of the proceeds pay, first, the expenses of executing the trust, and for that purpose, the trustee may employ any agent or agents, and pay him or them a reasonable compensation; and secondly, to pay off the debts mentioned in a schedule also made part of the deed; and should there not be sufficient to pay all, then to pay them pro rata, with power to the trustee to sell and dispose of the effects so conveyed as he may deem proper, and most to the interest of the cestui que trusts; and also with full power and authority to compromise and compound, as he may think proper, any claim hereby conveyed. (This schedule of liabilities includes the debt for which [**4]  the plaintiffs have attached, and an item of $ 30,862.15, specified as due "Wm. Teeter, being balance due on account of purchase of hogs on account of the house.") The deed then declares that the transfer of the claim on Carson & Edes, and T. J. Carson & Co., and Lees & Walter, is subject to drafts and assignments theretofore given by the grantors--1st, to Gill, Anderson & Co.; 2nd, to Walters & Fox; 3rd, to Parmelee & Bro.; 4th, to Smith, Clark & Logan; and 5th, to B. & L. Leavell, and Conn & Ramsay. It then directs the trustees to defend certain attachments laid on a portion of the property conveyed, and then pending in the Louisville Chancery Court, and which the grantors deem to have been improperly issued, and if the plaintiffs therein should be successful, the trustee is to pay the claims attached for, and if unsuccessful, then said debts are to be paid pro rata with the others. The deed then explains that the item of $ 30,862.15, rendered in the schedule of liabilities, is intended to cover claims and notes created by Wm. Teeter, for purchases for said firm, in and for some of which he has executed the notes of Teeter, Maxcy & Co., which debts so created are designed to be secured [**5]  by this deed, and the trustee is to pay the same with the other debts specified in the schedule.

The deed is executed by the grantors in their individual names, and by the two firms in their co-partnership names, and also by Riddle, the assignee, as an acceptance of the trust, and, on the same day, was recorded in Kentuckey, but was never stamped nor recorded in Maryland, and no affidavit as to the consideration was made by the grantee.

The claim of the plaintiffs, on which the attachment issued, was admitted to be correct, and it was further admitted, that neither of the defendants was, at the time the attachment issued, a citizen of Maryland, nor did either of them then reside therein; that Jos. Carson, one of the garnishees, was in Madison, Indiana, at the end of the month of December 1853; that at the time the attachment issued and was laid, there was a large amount of produce, consisting of pork, lard, bacon, and other provisions, in the hands of the garnishees, T. J. Carson & Co., in Baltimore, which had been consigned to them, for sale, by E. Webb, Maxcy & Co., of Louisville, and that afterwards, and before pleas filed, there accrued from the sale of said property,  [**6]  in the hands of the garnishees, over and above all advances made by said firms of T. J. Carson & Co., and Carson & Edes, the sum of $ 12,805; that the property consigned as aforesaid, was parcel of that mentioned in paper M., No. 1, attached to the above deed; and that the property mentioned in said deed is inadequate to pay the creditors named in the schedule of liabilities thereto annexed.

The assignments of the proceeds of the property in the hands of T. J. Carson & Co., and Carson & Edes, referred to in the deed, were made on the 30th of December 1853, the day before the deed was executed, and consist of six drafts or orders, two of which are signed by E. Webb, Maxcy & Co., and the others by Teeter, Maxcy & Co. They are all directed to T. J. Carson & Co., and Carson & Edes, with the exception of one, in favor of Gill, Anderson & Co., which is directed to Carson & Bro., and, in reference to this, two witnesses, examined under the commission, swear that notice thereof was given to a man they call Joseph Carson, whose name the witnesses believe is T. J. Carson, at Madison, Indiana, on the 30th of December 1853. It was, however, admitted there was no such firm as Carson & Bro.  [**7]  The terms of these several orders are sufficiently stated in the opinion of this court, and their amount largely exceeds the funds now in the hands of the garnishees.

In reference to the validity of the deed of trust or assignment, according to the laws of Kentucky, the testimony of two witnesses was taken, under a commission sent to Louisville. Wm. S. Bodley, one of them, testifies that he is acquainted with the laws of Kentucky, and has obtained that knowledge by study and practice there and in Mississippi, since the year 1825, and by being a Circuit Judge in Mississippi a short time; that he has examined with care a copy of the deed in question, shown him, and the clauses and provisions in said deed appear to be, according to the law of Kentucky, legal and valid, and sufficient to convey to the grantee therein the property mentioned by the deed, and intended to be conveyed; that he knows of no statute of Kentucky affecting the correctness of the above opinion, or bearing upon that point, and that the common, customary or unwritten law of Kentucky, in relation thereto, is above stated correctly, as he believes. Hamilton Pope, the other witness, says, I am acquainted with the [**8]  laws of Kentucky, being a practicing attorney; I have examined the copy of the deed in question, and am of opinion that the clauses and provisions therein are, according to the laws of Kentucky, legal and sufficient to convey to the grantee the property set forth therein; I know of no statute of Kentucky affecting the correctness of the above opinion, or bearing on the point; I was one of the counsel who advised and prepared the original deed.

Several letters were also read in evidence, by consent, for any purpose for which they are admissible, viz: 1st, one from Riddle, the assignee, dated Louisville, 31st of December 1853, directed to Carson & Edes, New York, advising them that E. Webb, Maxcy & Co., and Teeter, Maxcy & Co., had that day assigned to him, for the benefit of their creditors, all their estate, real, personal and mixed, debts, &c., and directing them (Carson & Edes) to take notice thereof, and to hold all property committed to either of their firms as subject to said assignment, and saying that a lien is recognised for advances made by them on the property consigned; 2nd, the reply of Carson & Edes to the above, dated New York, January 6th, 1854, directed to Riddle,  [**9]  saying that his letter of the 31st ult. came to hand this morning, (January 6th, 1854,) and also informing him that an attachment was laid, two or three days ago, against E. Webb, Maxcy & Co., at the suit of T. J. Wilson & Co., of Baltimore, of the legality of which they know nothing, and further stating that some orders of E. Webb, Maxcy & Co., to other parties, have also been advised, which they shall not, of course, accept; 3rd, a letter from the plaintiffs, T. J. Wilson & Co., dated Baltimore, January 4th, 1854, to E. Webb, Maxcy & Co., in which the writers say, "we were yesterday surprised by a dispatch from Messrs. Hutchins & Co., which stated you have refused to accept our drafts, and have made an assignment," and also stating that they had attached the funds in the hands of Carson & Edes; and 4th, a letter from T. J. Carson & Co., showing that the sales of the property attached, except a small amount, were made by the garnishees, after the attachment was laid.

The plaintiffs asked ten instructions to the jury, in substance as follows:

1st. This prayer asserts, that the deed of assignment of the 31st of December 1851, is no bar to the plaintiffs' recovery against the [**10]  garnishees, provided the jury find, from the evidence, that the plaintiffs never assented to it, and that Teeter and Stoll were members of the firm of Teeter, Maxcy & Co., and not of that of E. Webb, Maxcy & Co., and that the property and debts mentioned in the deed belonged, in part, to the firm of E. Webb, Maxcy & Co., and that for a large amount of the debts mentioned in the schedule annexed to the deed, the firm of E. Webb, Maxcy & Co., was not, in any manner, liable, and that William Teeter, mentioned in said schedule, is one of the grantors in the deed, and that the firm of E. Webb, Maxcy & Co., were, at the date of the deed, in embarrassed circumstances, and unable to pay their debts in full, and that the provision made by the deed was, and is, inadequate for such payment, and that the deed was not stamped, and not acknowledged, and not recorded in any office in Maryland, in which deeds and bills of sale can be recorded, within twenty days after its date, and that no affidavit was made that the consideration set forth in the deed was true and bona fide, as therein set forth, and that no bond was ever given by Riddle, the trustee, or by any one else, conditioned for the faithful [**11]  performance of the trust, and that no other person was ever appointed trustee in place of said Riddle; and that at the date of the deed, the property attached by the plaintiffs existed specifically and unsold in the hands of the garnishees in Baltimore, as the property of the defendants, except as to the amount mentioned in the letter of the garnishees, read in evidence by consent, and that the proceeds of any sales made prior to the laying of the attachment, were applied to the advances made by the garnishees, and that the sum of $ 12,865, admitted to be in the hands of the garnishees, accrued entirely from sales made after the laying of the attachment, and that the garnishees had no notice of the existence of the deed until after the laying of this attachment, and that the plaintiffs were, and the defendants were not, at the time the attachment issued, citizens of Maryland, residing therein.

2nd. This prayer asserts that the paper marked No. 2, (which is one of the drafts or assignments in favor of Walters, mentioned in the deed, as subject to which the claim on the garnishees was transferred, and which is signed by E. Webb, Maxcy & Co., and directs the garnishees to pay, out [**12]  of the balance of the proceeds of certain specified shipments of hog product, when sold, after deducting advances of $ 68,422.85, admitted to have been received from the garnishees, to Walters the sum of $ 6853, the same being due him by Teeter, Maxcy & Co.,) is not competent evidence to sustain the plea of nulla bona as to such part of the several articles therein specified, as remained in the hands of the garnishees, unsold at the time of laying the attachment, provided the jury find, from the evidence, that any part of said articles were, at the date of said paper, and at the time of laying the attachment, and at the time when the garnishees first received notice of the existence of the paper, in the hands of the garnishees, and that the advances of $ 68,422.50, therein mentioned, had not, at any of said periods, been paid or satisfied in whole or in part, and that no means had been provided in any manner for payment or satisfaction thereof, except said shipments, and that the debt mentioned in said paper was the debt of Teeter, Maxcy & Co., and not that of E. Webb, Maxcy & Co., and that Teeter and Stoll were two of the members of the former, and were not members of the latter firm,  [**13]  and that said paper was never accepted by the garnishees, and was not presented to, or its contents made known to them, or either of them, before or at the time this attachment was laid.

3rd. This prayer asserts that the paper marked No. 3, (which is the assignment or draft in favor of Parmelee & Bro., referred to in the deed, and also set out in the opinion of this court,) is not competent evidence to sustain the plea of nulla bona as to such parts of the shipments therein referred to as remained in the hands of the garnishees, unsold at the time of laying the attachment, provided the jury find, from the evidence, that any part of said shipments were in the hands of the garnishees, in the city of Baltimore, at the date of said paper, and at the time of laying this attachment, and at the time the garnishees first had notice of the paper, and that the garnishees never accepted said paper, or assented to the direction therein contained, and were not notified of its existence or contents until after the laying of this attachment, and that the sum of $ 10,000, therein mentioned, was not due by the defendants in this suit.

4th. That the following portion of the evidence of Wm.  [**14]  S. Bodley, viz: "the clauses and provisions in said deed appear to be, according to the law of Kentucky, legal and valid, and sufficient to convey to the grantee therein the property by said deed mentioned to be conveyed," is not legal and competent evidence to go to the jury.

5th. That so much of the evidence of said Bodley as is specified in the preceding prayer, is not sufficient evidence of what were the laws of Kentucky, as applicable to said deed.

6th. That the burden of proof is on the garnishees to prove, as facts, what are the laws of Kentucky, applicable to said deed, if they mean to contend that those laws, as applicable thereto, are other or different from the laws of Maryland.

7th. That said deed was not, and is not, a good and valid assignment or transfer of property which was in the hands of the garnishees at the time of laying this attachment, and that in the absence of proof that the laws of Kentucky, as applicable to it, are other or different from the laws of Maryland, it is to be assumed that the laws of Kentucky, as applicable thereto, are the same as the laws of Maryland.

8th. That the following portion of the evidence of Hamilton Pope, viz:  [**15]  "am of opinion that the clauses and provisions therein contained are, according to the laws of Kentucky, legal and sufficient to convey to the grantee the property set forth therein," is not competent and legal testimony to go to the jury.

9th. That so much of the testimony of said Pope as is recited in the preceding prayer, is not legal proof of what are the laws of Kentucky, applicable to said deed.

10th. That said deed was not, and is not, a good and valid assignment of so much of the property of the defendants, E. Webb, Maxcy & Co., consigned by them to the garnishees, for sale, as remained unsold in the hands of the garnishees at the time of levying this attachment, and that said deed is not sufficient to sustain the issue joined on the plea of nulla bona.

The court (FRICK, J.,) granted the second, third and sixth prayers, but rejected all the others, and decided that the testimony of Bodley and Pope, in relation to the law of Kentucky, was for the court, and not the jury, and that said testimony was legal and competent evidence, and accordingly instructed the jury that the clauses and provisions in said deed of trust were, according to the law of Kentucky, legal [**16]  and valid, and, by such law, sufficient to convey to the grantee therein named the property by said deed mentioned to be conveyed.

The plaintiffs excepted to the ruling rejecting their several prayers, which were refused, and to the granting of the instruction so given by the court. The verdict and judgment were in favor of the garnishees, and the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An order directing consignees "when in funds from sales of various shipments of hog product, to pay" certain named parties "the sum of $ 10,000, should the balance coming to us" (the consignors) "amount to that sum," cannot defeat an attachment laid in the hands of the consignees, by creditors of the consignors, before the former had accepted the order, or in any way assented or agreed to, or recognised the appropriation of the fund to the specified purpose.

Where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and, after notice to the drawee, it binds the fund in his hands.

But an order either on a general or particular fund, for a part only, is not an assignment of that part, nor does it give a lien thereon as against the drawee, until he consents to the appropriation by accepting the order, or an obligation to accept may be fairly implied from the custom of trade, or the course of business.

The testimony of two witnesses, (lawyers,) that they are of opinion a certain deed is, according to the laws of Kentucky, where it was executed, legal and sufficient to convey the property to the grantee, and that they know of no statute of that State affecting this opinion, is sufficient proof of the foreign law, and this being the only testimony on this point in the case, and the question being whether the deed should be admitted in evidence, the proof is for the court.

The recognition of the laws of another State in the administration of justice in this, is not a right, stricti juris, but depends entirely on comity, and in extending it, courts are always careful to see that the statutes or policy of their own States are not infringed, to the injury of their own citizens.

The act of 1729, ch. 8, sec. 5, requiring conveyances of personal property, whereof the grantor remains in possession, to be recorded within twenty days in the county where the grantor resides, applies only to deeds made in Maryland, and not to those made in another State.

A deed of trust, for the benefit of creditors, executed in another State, in conformity with the laws thereof, though not executed, acknowledged or recorded in Maryland, transfers the title to personal property in Maryland so as to defeat an attachment subsequently sued out in this State by creditors of the grantor residing here.  

COUNSEL:
Wm. A. Talbott and Wm. Schley for the appellants:

1st. The orders given on the 30th of December 1853, did not operate as a valid transfer of the property in the hands of the garnishees, so as to defeat the plaintiffs' attachment; for, 1st, only two of these orders were signed by E. Webb, Maxcy & Co., the others were signed by Teeter, Maxcy & Co.; all of them are proved to have been for debts of the latter firm, and must be regarded as out of the case, for there is no evidence that the property in the hands of the garnishees belonged to this firm, and surely E. Webb, Maxcy & Co. could not, insolvent as they were, devote their money to pay Teeter, Maxcy & Co's debts; 2nd, but again, these orders are not an assignment of the whole fund, but only orders for a part of it, and therefore gave [**17]  the parties holding them no lien on the fund until assented to by the consignees. In such cases the consignee must consent to the appropriation by an acceptance of the orders, or do some act recognizing the appropriation of the property consigned to him to the particular purposes specified in the orders; for, until then, the property and its proceeds remain at the risk and on account of the remitter or owner. 5 Wheat., 286, Mandeville vs. Welch. 5 Pet., 601, Tiernan, et al., vs. Jackson. 10 Md. Rep., 373, Eichelberger & Erskine, vs. Murdock. 14 East., 582, Williams vs. Everett. 72 Law Lib., 232. There is no proof that the garnishees ever accepted, agreed to, or recognized the appropriations made by these orders, and these being thus out of the case, the only remaining defence is the deed of assignment to Riddle, and as to this we insist:

2nd. That the proof offered to support the deed as valid by the law of Kentucky, was not competent for such purpose, the witnesses, Pope and Bodley, giving merely their opinions as to its validity. The laws of a foreign country are to be proved as facts; the statute law by the production of a duly certified copy of the statute, and the common [**18]  law by proof of experts. Now, when the statute is shown, the court here decides the effect of that law upon the case; so, if the common law is shown, the court here ought to decide as to its effect upon the case. The opinion of experts cannot deprive the suitor of his right to the judgment of the court, and opinion as to the validity of a paper, is not proof of the common law, any more than opinion as to a limited custom would be proof of the custom. Besides, if opinion given before the whole evidence is in, is to be proof, then, practically, all other evidence is shut out. 2 H. & J., 229, De Sobry vs. De Laistre. 3 G. & J., 242, Trasher vs. Everhart. Story's Conf. of Laws, secs. 637, 642. 7 Gill, 377, Gardner vs. Lewis. These witnesses, moreover, do not say that, by the law of Kentucky, this deed is good as against creditors, but only that it is good against the grantors, and would pass the property to the grantee, whereas it was incumbent on the garnishees to prove, by legal evidence, that the deed was valid as against creditors, non-assenting as well as assenting. (13 Mass., 147, Ingraham vs. Geyer. 5 Md. Rep., 44, Cushwa vs. Cushwa.) In this respect the proof here differs widely [**19]  from that given as to the law of South Carolina, in the case of Black, et al., vs. Zacharie & Co., 3 How., 487, 488.

3rd. That the property attached, being in specie, in the hands of the garnishees, in Maryland, at the time the attachment was laid, and the garnishees having so continued in possession, their possession was the possession of the defendants, and could only be changed either by actual transfer to an assignee, or by deed executed and recorded according to the law of Maryland, or actual notice to the garnishees. If considered as a chose in action, the title of the assignee was merely inchoate until actual notice to the garnishees, and the property in their hands, over and above their advances at the time of laying the attachment, was the property of E. Webb, Maxcy & Co., and the plea of nulla bona was not sustained by proof of the assignment without actual notice to the garnishees, prior to the attachment. 3 Barn. & Cress., 423, Bentall, et al., vs. Burn. Blackburn on Sale, 223, 225, 230, in 57 Law Lib. Cross on Lien, 83, 84. 4 Mees. & Wels., 791, Bryans, et al., vs. Nix. 77 Eng. C. L. Rep., 743, Watts & Wife, vs. Porter. 3 Russell, 1, Dearle vs. Hall. 2 Story's Eq.  [**20]  , secs. 1042, 1043, 1047. 2 Ross on Commercial Law, 576, Auld vs. Hall. 3 Day, 376, Woodbridge vs. Perkins. 5 Day, 534, Judah vs. Judd. 16 Verm., 579, Whitney vs. Lynde. 17 Mass., 110, Lanfear vs. Sumner. 10 Md. Rep., 379, Eichelberger, et al., vs. Murdock. There is no proof that these garnishees had notice of this deed of assignment prior to the attachment, but, on the contrary, the letter of Carson & Edes, of the 6th of January 1854, shows that they did not know of the assignment till that day, and, in this very letter, Riddle is informed that our attachments had been previously laid in their hands. But it is said, we had notice of this assignment prior to our attachment: we had, however, no notice of the terms of this particular deed. But suppose we had notice, how does that help the title of Riddle, the assignee? He must perfect his title by giving notice to the garnishees, and if we take the property before that is done, by legal process, our title must prevail, whether we knew of the assignment or not. At any rate, we never assented to the deed; knowledge is one thing, and assent another. 7 Md. Rep., 296, Glenn vs. Boston, &c., Glass Co. Again, Riddle, the assignee, can only claim [**21]  under the assignment; he cannot enlarge the power given him by the deed, and by that instrument the property in the hands of these garnishees is assigned, subject to advances, and to the orders above referred to. These orders, though not valid as against us, are still good as against the parties to the deed, and as they far exceed the balance in the hands of the garnishees, nothing on this claim was, therefore, conveyed by the deed to the trustee.

4th. That the deed is void, according to the law of Maryland, as against the appellants; 1st, because it attempts to convey all the property of E. Webb, Maxcy & Co., the debtors of the appellants, for debts not owing by that firm, and so to appropriate the partnership effects to the wrong of the partnership creditors. It confuses and blends together the property of two firms, between whom there is no privity. It may well be that E. Webb, Maxcy & Co. were solvent as to their partnership debts, and yet we, who are their creditors, and have attached their property, are met with a deed which takes this property from them, and distributes it to the creditors of Teeter, Maxcy & Co. This cannot be done, and the deed is, for this reason, void.  [**22]  1 H. & G., 96, McCulloh vs. Dashiell. 2 Coll. on Part., sec. 822, note. A partnership creditor attaching the partnership funds, is preferred to an attachment of a separate creditor of one of the partners. 1 Gallison, 367, Lyndon vs. Gorham, et al. 9 Greenleaf's Rep., 28, Commercial Bank vs. Wilkins. 6 Mass., 242, Pierce vs. Jackson. 22 Pick., 450, Allen vs. Wells. 2nd. Because it contains various provisions which are denounced by the law of Maryland, as fraudulent per se, and others which were evidence to the jury, to show fraud in fact. It does not purport, on its face, to convey all the property of the firms, or of the individual partners; it authorizes the trustee to employ agents, and to compound claims as he may think fit, and reserves to one of the grantors a large amount; it has no stamp, no affidavit as to the consideration, and was never acknowledged nor recorded in Maryland, as required by the act of 1729, ch. 8, sec. 5.

5th. That though the deed may be valid by the law of Kentucky, and, by comity, might be held valid to pass the property attached, in the absence of express legislation here, yet, being opposed to the policy of the law of this State, and, as already shown,  [**23]  in violation of express statutes, it cannot avail against this attachment. The plaintiffs being citizens of Maryland, and the property attached being in Maryland, belonging to non-resident debtors, the courts here will not send them abroad to another jurisdiction for dividends, when they have the means of payment at home. 13 Mass., 146, Ingraham vs. Geyer. 17 Mass., 110, Lanfear vs. Sumner. 15 Pick., 11, Fall River Iron Works Co., vs. Croade. 5 Greenleaf's Rep., 245, Fox vs. Adams, et al. 23 Verm., 279, Skiff vs. Solace. 14 Martin, 93, in 2 Cond. Louisiana Rep., 606, Olivier vs. Townes.

For these reasons it is insisted that the several rulings of the court below, excepted to, were erroneous, and the judgment should be reversed, and, as their claim is admitted to be correct, this court will enter judgment in favor of the appellants, without awarding a procedendo.

Charles H. Wyatt and Geo. Wm. Brown for the appellees:

1st. The orders of the 30th of December, were sufficient assignments of the fund in the hands of the garnishees. One of them, at least, was shown to Joseph Carson, one of the garnishees, on the day of its date, and they had, therefore, notice thereof before [**24]  the attachment. The firm of E. Webb, Maxcy & Co., were partners of Teeter, Maxcy & Co., and liable for all the debts of the latter firm, and the orders were, therefore, properly given, signed by either firm. All these orders are expressly ratified by the deed of trust, which is signed by all the members of both firms, and this ratification is valid, even if the deed itself, for any reason, is not a valid assignment of the property which it professes to convey. In support of the position that these orders were valid and effectual assignments of this fund, so as to defeat the attachment, we refer to 2 Story's Eq., sec. 1047; 72 Law Lib., 229; 16 Pet., 106, Tompkins vs. Wheeler; 8 Wheat., 268, Spring vs. South Carolina Ins. Co.; 7 Pet., 608, Brashear vs. West, et al.; 26 Maine, 448, Porter vs. Ballard; 20 Verm., 25, Blin vs. Pierce; 3 Barb., 262, Hoyt vs. Story; 8 Humph., 654, Johnson vs. Irby; 4 Md. Rep., 316, Crane vs. Gough. But if these orders should not be held valid as against this attachment, we then rely upon the deed of trust or assignment of the 31st of December 1851, as a conclusive bar to it, and insist:

2nd. That the deed was valid, according to Maryland law. The partners [**25]  of E. Webb, Maxcy & Co., had a right to unite with the partners of Teeter, Maxcy & Co., to pay the debts of both concerns, because the partners of the former were liable for all the debts of the latter firm, being partners thereof. There is no rule of law which prevents a debtor, in failing circumstances, from consolidating his property, individual and partnership, into a common fund, for the purpose of paying a certain class of debts. This is all E. Webb, Maxcy & Co. did. It does not appear that there were any individual debts due by any of the partners. If, in this way, they gave to the creditors of either firm a larger dividend than could have been derived from the assets of the particular firm, this is not an improper preference, but one which the law allows. But it does not appear that any such preferences were created by this deed. This deed, being thus valid if executed only by the partners of E. Webb, Maxcy & Co., is certainly not made void by the fact that the other two partners of Teeter, Maxcy & Co. join in the conveyance, and throw their property into the common fund. If the appellants were creditors of Teeter, Maxcy & Co., they might, with some appearance of reason, complain [**26]  that that firm had united in a conveyance for the payment of the debts of both firms, because all the partners of that firm were not partners of the other. But they are creditors of E. Webb, Maxcy & Co., and the deed secures none but debts for which that firm, in its partnership capacity, or all its members, as partners of Teeter, Maxcy & Co., were responsible, and certainly this court cannot determine that such a deed was fraudulent as against such creditors. There is no reservation in it in favor of the grantors. It is true, Teeter's name appears as one of the creditors, but the deed itself explains this item, and shows that it was to pay the debts of the firm, created by Teeter, and not to reserve any of the property conveyed to either of the grantors. So far, therefore, as these objections are concerned, the deed would be valid if executed in Maryland, and by persons residing therein. 3 Md. Rep., 11, Green & Trammell, vs. Trieber. Ibid., 53, Sangston vs. Guither. The objections, that the deed is not stamped, and not acknowledged and recorded in Maryland, within twenty days, according to the act of 1729, ch. 8, and that there is no affidavit as to its consideration, do not apply [**27]  to a deed made in Kentucky, between parties there resident, and especially to a case where possession of the property conveyed was not sustained by the grantors. 1 Md. Rep., 524, Bryan vs. Hawthorne. Ibid., 474, Waters vs. Dashiell. But if Maryland law would condemn this deed, we then insist:

3rd. That the deed is fully and satisfactorily proved to be valid, according to the law of Kentucky. The statute law of a foreign State is to be proved by an exemplified copy of the law, and the customary or unwritten law, by witnesses who are acquainted with the law. This we have done by the two witnesses, Bodley and Pope, experienced practitioners of the law in that State, and who say they have examined the deed, and, in their opinion, it is valid. In no other way could experts testify. This evidence was also for the court and not the jury, in the absence of any contradictory proof, or proof that our witnesses were not entitled to credit. To sustain this position, that the law of Kentucky was properly proved, and that in this case the proof was for the court, and not the jury, we refer to 7 Gill, 377, Gardner vs. Lewis; 3 G. & J., 243, Trasher vs. Everhart; 2 H. & J., 219, De Sobry vs.  [**28]  De Laistre; 1 Greenlf on Ev., secs. 440, 486 to 488; Story's Conflict of Laws, secs. 637, 638, 642; 16 Eng. C. L. Rep., 426, Lacon vs. Higgins; 61 Eng. C. L. Rep., 268, Cocks vs. Purday; 6 Foster, 152, Pickard vs. Bailey; 12 Verm., 396, State vs. Rood; 8 Robinson, 414, United States vs. Bank of U. S.; 55 Eng. C. L. Rep., 208, Baron De Bode's Case.

4th. That being valid according to the law of Kentucky, and being made between persons there resident, the deed is valid to convey the personal property in Maryland, not being against the policy of our laws. We have already said, that it is not necessary that the deed should be recorded in Maryland within twenty days, according to the act of 1728, ch. 8, for it is very evident that that act only applies, and was only intended to apply, to deeds and bills of sale executed in Maryland, by persons residing therein; it does not pretend to invalidate a deed made in another State, between persons there resident, conveying, among other things, personal property in Maryland. This question seems to be conclusively settled by the case of Houston vs. Nowland, 7 G. & J., 480, where it was decided, that a deed executed in Delaware, in conformity [**29]  with the laws of that State, though not valid to convey real estate in Maryland, without being executed, acknowledged and recorded, according to our laws, was yet effectual to convey personal property belonging to the grantor, including choses in action, in Maryland. The cases of Trasher vs. Everhart, and Gardner vs. Lewis, already referred to, also decide that though the rule of comity is overruled by positive law, yet, in the absence of such positive law, it is a universal principle governing the judicial tribunals of all civilized countries, that the lex loci contractus controls the nature, construction, and validity of the contract. On this point, see, also, 18 Penn. State Rep., 185, Law vs. Mills; 6 Binney, 361, Milne vs. Moreton; 4 Johns. Ch. Rep., 469, 487, Holmes vs. Remsen; 5 Mason, 174, Bholen, et al., vs. Cleveland, et al.; 2 Bailey, 163, Greene vs. Mowry; 8 Robinson, 262, United States vs. Bank of U. S.; 2 Wallace, Jr., 131, Caskie vs. Webster; 3 How., 514, Black vs. Zacharie & Co.; Story's Conf. of Laws, secs. 383, 384; all of which decide that personal property has no locality, but follows the situs of the owner, and that the law of the owner's domicil is to determine [**30]  the validity of the transfer, or alienation thereof, unless there is some positive or customary law of the county, where it is found, to the contrary, and that a general voluntary assignment, valid by the laws of one State, though assumed to be void if it had been made in another, will carry property in that other against an attaching creditor there, and especially in a case where the attaching creditors had notice, as the appellants had here, of the assignment, at the time of their attachment.

5th. The position taken by the other side, that the proceeds of the property, which remained specifically in the hands of the garnishees at the date of the attachment, and was subsequently sold by them, to reimburse themselves for their advances, are not conveyed by the deed, is not sustained by the authorities or the facts. The property was sold by the garnishees, to repay the advances made by their agreement, and the proceeds of sale are transferred by the deed, precisely as the property itself would be. The appellants, as shown by their letter, had notice of the assignment before they laid their attachment, but no such notice was necessary, for the deed was immediately operative on being [**31]  assented to by the trustee, and operated instantaneously as a transfer of the property, so as to defeat an attachment subsequently issued and laid. Story's Conf. of Laws, sec. 396. Hill on Trustees, 83, 84, 448. 72 Law Lib., 229. 6 Watts & Sergt., 329, Read vs. Robinson. 4 Barr., 274, Seal vs. Duffy. 13 Penn. State Rep., 589, Klapp vs. Shirk. 11 Wend., 241, Cunningham vs. Freeborn. 2 Paige, 311, Keyes vs. Brush. 2 Green's Ch. Rep., 84, Scull vs. Reeves, et al. Burrill on Assignments, 280, 282, 321.

For these reasons, without urging other specific objections to several of the prayers, it is submitted that the rulings excepted to are correct, and that the judgment should be affirmed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*71]  LE GRAND, C. J., delivered the opinion of this court.
This is an attachment on warrant, which, on the 3rd day of January 1854, issued out of the Superior Court of Baltimore city, at the suit of Thomas Wilson & Co., against the effects of Ezra Webb, Wm. Maxcy and Thomas G. Rowland, copartners, trading under the firm of E. Webb, Maxcy & Co., to recover a balance on account due 26th of November 1853,  [**32]  of $ 4847.96. On the 4th day of January 1854, the attachment was laid in the hands of the garnishees. The garnishees pleaded non assumpsit and nulla bona. All the members of the firm of Webb, Maxcy & Co., together with William Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxcy & Co., of Louisville, but neither Teeter nor E. Lewis Stoll were of the firm of E. Webb, Maxcy & Co. Both firms failed in 

 [*72]  business, and, on the 31st day of December 1853, all the members of both firms united in a deed of trust to William Riddle, of Louisville, conveying a large amount of real estate in Kentucky, belonging to William Maxcy, individually, also his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to T. G. Rowland, also certain personal property also belonging to him, individually; all the estate of Wm. Teeter, real, personal and mixed; certain property, real and personal, belonging to E. Lewis Stoll; the warehouse furniture of E. Webb, Maxcy & Co.; also certain accounts, debts, rights, choses in action, and personal property set out in paper marked M., No. 1, which is made part of the deed. This paper specifies the [**33]  lard, pork, &c., which had been shipped to T. J. Carson & Co., of Baltimore. This conveyance was one in trust for the benefit of creditors, after paying certain expenses, according to the order specified in it. It provides that the transfer, in the deed, of the claim on Carson & Edes, and T. J. Carson & Co., and Lees & Walter, is subject to drafts and assignments by the grantors, previously given: 1st, to Gill, Anderson & Co.; 2nd, to Walters & Fox; 3rd, to Parmelee & Bro.; 4th, to Smith, Clark & Logan; and 5th, to B. & L. Leavell, and Conn & Ramsay.
It was admitted that neither of the defendants were citizens of Maryland at the time of the issuing of the attachment, nor were they at the date of the execution of the deed of trust of the 31st day of December 1853. It was also admitted, that at the time the attachment issued and was laid, there was a large amount of property, consisting of pork, lard, bacon, and other provisions, in the hands of Thomas J. Carson & Co., in Baltimore, which had been consigned to them for sale, by E. Webb, Maxcy & Co., of Louisville, the defendants; and that afterwards, and before the garnishees pleaded, there accrued from the sale of said property, over [**34]  and above all advances, the amount of $ 12,805. The amount of assignments specifically made of this fund by the orders of date the 30th day of December 1853, and recognized in the deed of trust of the following day, is $ 28,714.42.
The correctness of the claim of the plaintiffs below is not 

 [*73]  questioned. The questions we are called upon to determine, grow out of the orders of assignment, the deed of trust, the proof of the laws of Kentucky, and the levying of the attachment.
If the assignments given on the 30th of December, be valid, and bind to their amount any balance of the proceeds of the sales of the consignments to the garnishees, then it is clear the plaintiffs could not recover in this action; those assignments being largely beyond, in amount, any fund in the hands of the garnishees to meet them.
On the part of the appellants, it was insisted, that the property attached, being in specie, in the hands of the garnishees, in Maryland, at the time the attachment was laid, and the garnishees having so continued in possession, their possession was the possession of the defendants, and could only be changed either by actual transfer to an assignee, or by deed executed [**35]  and recorded according to the laws of Maryland, or actual notice to the garnishee. That if considered as a chose in action, the title of the assignee was merely inchoate until actual notice to the garnishees, and the property in the hands of the garnishees, over their advances, at the time of laying the attachment, was the property of E. Webb, Maxcy & Co., and the plea of nulla bona was not sustained by proof of the assignment, without actual notice to the garnishees, prior to the attachment.
It appears from the letter of the plaintiffs, of date the 4th of January 1854, that they had, at that time, knowledge an assignment had been made by the defendants; it does not, however, appear they were acquainted with its precise character. The letter of Carson & Edes, of the 6th of January 1854, is the only evidence of the time when they first acquired knowledge of the fact that Mr. Riddle had been appointed assignee, and this letter shows that the attachment of the plaintiffs had been previously levied, of which it notifies Mr. Riddle. Although it is stated, in the admitted statement of facts in the record, that Joseph Carson, one of the garnishees, was in Madison, Indiana, at [**36]  the end of the month of December, it nowhere appears he either had knowledge of the orders or of 

 [*74]  the deed, or assented to either. We cannot infer such knowledge or assent on his part.
The several orders given by the defendants, are, in language, substantially the same. The one in favor of Messrs. Parmelee & Bro., is as follows:
"LOUISVILLE, December 30th, 1853.

Messrs. T. J. Carson & Co.
Gentlemen:--When in funds from sales of our various shipments, to your houses in New York and Baltimore, of hog product, please pay to Messrs. Parmelee & Bro. the sum of ten thousand dollars, should the balance that may be coming to us amount to that sum, and oblige," &c.
The case of Tiernan, et al., vs. Jackson, 5 Pet. 580, was this: A shipment of tobacco was made at New Orleans, by the agent of the owner, consigned to a house in Baltimore, the shipment being for the account and risk of the owner, he being at the time indebted to the consignees for a balance of account. The owner of the shipment drew two bills on the consignees, and on the same day made an assignment on the back of a duplicate invoice of the tobacco, in the following words: "I assign to [**37]  James Jackson (the drawee of the bills) so much of the proceeds of the tobacco alluded to in the within invoice, as will amount to two thousand four hundred dollars, (the amount of the two bills,) to J. and L. six hundred dollars, &c., and Messrs. Tiernan & Sons (the consignees) will hold the net proceeds of the within invoice subject to the order of the persons above named, as directed above." The court, after a most elaborate argument at the bar, by able counsel, held, that this assignment, by its terms, did not pass the legal title so as to authorize the assignees to sue in their own names, and fully endorsed the doctrine laid down in Mandeville vs. Welch, 5 Wheat. 277, 286, where it was said, that in cases where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund; and, after notice to the drawee, it binds that fund in his hands. But where the order is drawn either on a general or particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation 

 [*75]  by an acceptance of the draft, or an obligation to accept [**38]  may be fairly implied from the custom of trade, or the course of business, and that until the parties receiving a consignment or a remittance, under such circumstances, had done something recognizing the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a privity between them, the property and its proceeds remained at the risk and on the account of the remitter or owner. The same doctrine was held by the Court of Appeals of this State, in the case of Eichelberger & Erskine vs. Murdock, 10 Md. 373.
There is not a particle of proof, in the record, that the garnishees ever agreed to the appropriations made by the orders of assignment of the defendants.
We think, so far as proof of the law of Kentucky is concerned, the court below correctly stated the law. The case of Gardner vs. Lewis, 7 Gill 377, and of Trasher vs. Everhart, 3 G. & J. 234, are sufficient to show, in a case like the present, that the evidence of a foreign law is for the court. The two witnesses examined in regard to the matter, are, in our judgment, sufficiently explicit;  [**39]  they, in substance, say, (they being lawyers,) they are of opinion that the clauses and provisions in the deed of trust, according to the laws of Kentucky, are legal, and sufficient to convey to the grantee the property set forth therein, and that they know of no statute of Kentucky affecting that opinion, or bearing on the point. Opinion is belief, and nothing more; it is not absolute certainty, nor does the law require it to be so. If the reputation and professional standing of the two witnesses who were examined on this subject, were such as not to entitle them to credit, then, in that case, the fact should have been shown. They are wholly unimpeached, and, therefore, entitled to credit.
Although we deem the proof of the law of Kentucky sufficient, it does not therefore follow, necessarily, that we are to give it full effect in Maryland. The recognition of the laws of another State, in the administration of justice in this, is not a right stricti juris; it depends entirely on comity, and, in extending 

 [*76]  it, courts are always careful to see that the statutes of their own State are not infringed, to the injury of their own citizens. The citations from Justice Story's  [**40]   work on the Conflict of the Laws, made in the opinion we have referred to, in 7 Gill, are sufficient to establish the proposition we have stated. The question, then, is, is the deed of trust of the 31st of December 1853, so violative, if at all, of the statutes or policy of this State, as to make it null and void in this case? This inquiry is wholly aside of the doctrine recognized in some of the States, to wit, that a citizen of a State to whose forum application is had for the enforcement of the provisions of the deed, will not be compelled to resort to that of a State in which the deed was executed, but will be allowed the advantage of whatever lien his diligence may have given him on the property of his debtor, within the State of his own residence. This principle has been acted upon in Massachusetts, Vermont and Maine.
We know of no reason why the deed of the 31st of December 1853, should not operate in this case; the only one which has been suggested, is that arising out of the act of 1729, ch. 8, sec. 5. It is supposed that, inasmuch as the deed was not recorded within twenty days from its date, it can have no influence prejudicial to claim of appellants. In this view [**41]  we do not concur. That section provides, that "no goods or chattels, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser, mortgagee or donee, unless the same be in writing, and acknowledged before one provincial justice, or one justice of the county where such seller, mortgagor or donor shall reside, and be, within twenty days, recorded in the records of the same county."
The preamble to this section of the act, shows that its purpose was designed to guard against conveyances of goods "secretly" made for the benefit of children, or pretended creditors, whilst the donor or mortgagor was left in the enjoyment of the same. It is clear, to our minds, it was not intended to apply to the case of a deed or bill of sale made in another State than Maryland. It can only, by its terms, embrace 

 [*77]  such instruments as are made within the limits of Maryland, because the recording which it requires is to be made in the county where the seller, donor or mortgagor "resides."
It is the universal law, that the situs of personal property is the domicil of the owner. In this case it [**42]  was in Kentucky, and not in Maryland, and, therefore, to be determined by the law of the former, and not by that of the latter. To make the act of 1729 applicable to a case like the present, would, in fact, be to declare it incompetent to a person residing in England, or in any other distant country, to dispose of property in Maryland, for, in such situation of parties, it would be next to, if not quite, impossible, to record within the twenty days, and absolutely so within the county, for the foreign owner would not "reside" in any county within the State.
We have alluded to certain principles of law to guard against misapprehension hereafter, when a case shall arise to which they may be applicable, and to provide against the inference that this court is, in all instances, to recognize in the broadest sense the laws of other States, when properly adduced before it. But the case now under consideration, we regard as having been conclusively settled by the decision in the case of Houston vs. Nowland, 7 G. & J. 480. In that case the debtor resided in the State of Delaware, having property in Maryland. He executed a deed in conformity to the laws of Delaware,  [**43]  for the benefit of his creditors. It was not executed, acknowledged and recorded, so as to convey real estate in Maryland. After the execution of this deed, a creditor of the grantor, residing in Maryland, sued out an attachment, and had it laid on certain lands and certain credits. The judgment below was rendered for the garnishees, and this court affirmed that judgment, on the ground that although the deed did not per se convey real estate in Maryland, because not executed, acknowledged and recorded, in conformity to its requirements, yet it did transfer the title to the credits, and, therefore, the attachment could not be sustained. The only question which the court made in regard to the efficacy of the deed, was, that it was not executed, &c., so as to pass real estate; in regard to the other property, there was no difficulty, 

 [*78]  the instrument was deemed all sufficient. This case we hold to be decisive of the one now before us. In the argument, the court had presented to its consideration the case of Ingraham vs. Geyer, 13 Mass. 146, wherein it was held, that a deed executed in Pennsylvania, conveying property for the benefit of creditors, was [**44]  void in Massachusetts as against an attaching creditor. In the Massachusetts case, the doctrine of comity was disallowed, in aid of the deed as against the attaching creditor. We are, therefore, bound to consider that case as not endorsed as applicable to one like the present. In addition to the authority of the case of Houston vs. Nowland, we refer to that of Black, et al., vs. Zacharie & Co., 3 How. 483, which held, a transfer made in South Carolina, of stock in a corporation in Louisiana, to operate to defeat an attachment sued out in the latter State by the creditor of the person making the transfer, the attaching creditor having knowledge of the transfer at the time of suing out his attachment. It is manifest the plaintiffs had knowledge that an assignment had been made when they sued out their writ of attachment. Their letter, dated the 4th of January 1854, shows this.
Entertaining these views, we affirm the judgment below, regarding the law, as expounded by the Superior Court, as all that the plaintiffs were entitled to. The prayers which were rejected, were, for the reasons which we have assigned in treating of the principles governing the circumstances [**45]  of this case, properly refused.
Judgment affirmed. 

6 of 18 DOCUMENTS 

THOS. J. LEE & WIFE, vs. JOHN O. PRICE and the CHESAPEAKE BANK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 253; 1858 Md. LEXIS 22 

July 20, 1858, Decided 

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

The bill in this case, filed by the appellants against the appellees, alleges that Mrs. Lee is the niece and one of the heirs at law and next of kin of Charcilla C. D. Owings, who, as the complainants believe, died intestate, though a paper purporting to be her will, has been offered for probate by the defendant, Price, to the orphans court for Baltimore city, and having been caveated, is now the subject of inquiry as to its validity on issues sent from that court to the Superior court of Baltimore city for trial; that Price obtained letters of administration pendente lite on the estate of Miss Owings, from the orphans court for Baltimore county, though the will was never offered for probate in that court, and no controversy touching the same has ever been pending there, and that certificates of deposit for a large amount ($ 22,000) issued to Miss Owings by the Chesapeake Bank, and other property of hers have come to his hands, and that Price surrendered those certificates to the bank, and took out others for the same money in his individual name, and has obtained from the bank a part of the money for which such [**2]  new certificates of deposit were issued to him, and has applied it to his own use; that the complainants are apprehensive he will convert and waste the whole of the funds of the estate in his hands during the pendency of the controversy respecting the will, and that the rights and interests of the complainants in the estate may be greatly endangered; and that the complainants are remediless, except in equity. The bill then prays for an injunction restraining Price from using any more of the money, and that what has been used may be replaced, and the bank from paying any more of said money to him.

The injunction which was issued on this bill is directed to Price and the bank, and besides enjoining the payment of any more of the money to Price, and his appropriation of the same to his own use, directs the certificates which have been issued to him to be returned, and the money to be replaced in bank, as the money of the estate.

Price, in his answer, admits the caveat to the will, and the pendency of the issues to test its validity, and the grant to him by the orphans court for Baltimore county, after deciding that it had jurisdiction of the matter, of letters of administration [**3]  pendente lite on the estate of Miss Owings, and his possessing himself, in that character, of the certificates of deposit which had been issued to her by the bank. He also admits that he demanded payment of said certificates, and redeposited the amount in the same bank in his own name, receiving new certificates therefor, and has since obtained from the bank the amount of one of these certificates, and still retains the others, amounting to $ 16,500, and bearing interest, and states that he does not mean to make any use of them, except in due course of administration. He further alleges that his bond as administrator is abundantly ample for the whole personal estate, and denies that there is any ground whatever for apprehension on the part of the complainants, or that they do, in fact, apprehend any danger of ultimate loss. He concludes his answer by excepting to the jurisdiction of the court, on the ground that there is adequate remedy for the protection of all concerned, without resorting to the extraordinary powers of a court of equity, and that such a remedy is afforded by law in the orphans court for Baltimore county, where the duties of an administrator pendente lite may be enforced [**4]  summarily and effectually, and at small cost.

The answer of the bank agrees with that of Price, as to the usual of the original certificates of deposit to Miss Owings, Price's demand of the amount of them, as administrator pendente lite, and his surrender of the old, and reception of new certificates in his own name for the amount, one only of which has been cashed for him, the rest being still outstanding.

Both answers being filed, Price moved for a dissolution of the injunction, and the complainants then asked for a commission to take testimony, which was issued accordingly, and evidence taken thereunder, which does not change the state of facts averred in the answer, and, therefore, need not be repeated. The motion to dissolve was then heard, and the court (LEE, J.,) dissolved the injunction, and from the order of dissolution the complainants appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

An administrator pendente lite is responsible to the orphans court so long as he holds the letters, and that court has adequate powers to protect the interests of those concerned in the faithful performance of his duties, and a court of equity has no right to interfere with him, or with the funds in his hands belonging to the estate.  

COUNSEL:
No counsel appeared for the appellants.

J. Mason Campbell for the appellees:

1st. The writ that issued was manifestly wrong, and merited the fate it received. It not only restrained the defendants from further payments, but actually ordered them to put back the money already paid, and left [**5]  nothing whatever to be done by a final decree. It was, in effect, a final decree as to the whole controversy, and ended the case. Drury on Injunctions, 200.

2nd. In regard to the moneys payable to Price by the bank, on the certificates, it was unnecessary to come into chancery, when the orphans court of Baltimore county could have, at once, ordered the money into court, either ex officio or on application. Act of 1831, ch. 315, secs. 4 to 7. That court had adundant power to accomplish every thing desired by this bill, and there was, therefore, no necessity for going into equity. 3 Md. Rep., 454, Cain vs. Warford. 3 Bland, 184, Hewitt's Case. 8 G. & J., 226, Alexander vs. Stewart. 10 Simons, 327, Jones vs. Goodrich, (note 1.) 

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

OPINIONBY:
TUCK 

OPINION:

 [*256]  TUCK, J., delivered the opinion of this court.
The bill of complaint does not state a case authorizing a court of equity to interfere with the appellee, Price, or with the funds in his hands, belonging to the estate, in the manner proposed by the complainants. He must be treated as administrator pendente lite, appointed by a court of competent jurisdiction,  [**6]  and responsible to that tribunal so long as he holds the letters of administration. Raborg vs. Hammond, 2 H. & G. 42. Alexander vs. Stewart, 8 G. & J. 226. The powers of the orphans courts, under the acts of Assembly, are adequate to the protection of the interests of those concerned in the faithful performance of the duties of the appellee, as administrator, whilst his official bond affords indemnity for any loss that may occur. If the bond be insufficient, another may be required. We have decided the case upon the bill, without reference to the circumstance that the answer denies the allegations that the funds of the estate have been, or will be, wasted or misapplied by the administrator. See the act of 1831, ch. 315.
Order affirmed. 

7 of 18 DOCUMENTS 

JOHN S. WRIGHT vs. SANTA CLARA MINING ASSOCIATION OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 443; 1858 Md. LEXIS 36 

November 2, 1858, Decided 

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

This appeal was taken from a decree of the court below (Krebs, J.) dismissing the bill in this case, filed by the appellant against the appellee, upon the ground, that John B. Gray was not "made a party to the cause, and an opportunity afforded him to be heard in reference to his alleged rights, interests and pretensions, referred to in the bill."

The bill alleges, that articles of association were subscribed by R. J. Walker and others, for the purpose of forming a company to work a quick-silver mine in California. That the Company was called the Santa Clara Mining Association of Baltimore. And that on the 6th of June 1850, said Gray and wife conveyed the land on which the mine was situated to Isaac Tyson Jr. and others, in trust, to stand seized and possessed of the same, for the use of the Association, till it was incorporated, and then to convey the same to the corporation, and its assigns freed from the trust. That Gray signed these articles of association, and under the same certificates of stock therein were issued to him and the other members of the Association, which were transferable, and some of them in fact were [**2]  transferred by Gray and others to third persons. That an adversary title to the lands and mines so conveyed by Gray, was asserted by persons residing in California, and another association called the Gaudalupe Mining Company, was formed for the purpose of working the same mines, and had possession thereof, and had also obtained a confirmation of their title by the Board of Land Commissioners, established by the United States in California. That the said Santa Clara Association did not work these mines at any time, and had raised no means for that object, and that owing to this fact and the difficulties surrounding the title, it was agreed by these two rival Associations, that it was for the interests of both to compromise their contention and consolidate into one company. That the Legislature of Maryland, had, by the act of 1852, ch. 317, incorporated the said Santa Clara Company, but the charter thereof was not accepted by the same, owing to said disputes and difficulties of title. That on the 19th of July 1855, the proposed compromise and consolidation was made, and by the agreement thereof the sum of $ 333,333.33, in stock of the new Association, which adopted the name of "The Santa [**3]  Clara Mining Association of Baltimore," and which also at once accepted the charter aforesaid, was apportioned to John Hanson Thomas, John M. Gordon and Robert J. Walker, as trustees for the shareholders of the original Santa Clara Mining Association of Baltimore, as heretofore existing. That the complainant John S. Wright, became the owner, by purchase of several of the original certificates of said original Santa Clara Association, and being desirous of converting them into the stock of the consolidated and chartered company, according to the terms of the aforesaid consolidation, he is entitled to have a specific execution thereof, but that Isaac Tyson, Jr., and others, the surviving trustees named in the aforesaid deed of trust from Gray and wife, refuse and omit to make the necessary deeds of transfer and conveyance to said corporation, as provided in said deed, and as they ought to do according to the effect and meaning of the articles of association, subscribed by them and by said Gray and wife, and the resolutions and consolidation and proceedings before stated, and that John Hanson Thomas and John M. Gordon, who are named in said articles of compromise and consolidation, as [**4]  co-trustees with said Walker, to receive and hold the stock in said corporation, for the benefit of the shareholders in said unincorporated Association, do also now refuse and omit to unite with Walker, in receiving and endorsing said stock, and making the necessary subdivision and apportionment thereof, among the parties respectively entitled, although they have assumed the said trust. That the trustees in said deed of trust, as well as said Gordon and Thomas, and all other shareholders except said Gray, are personally willing and desirous to ratify and perfect the articles of consolidation, but that they, the said trustees, are restrained from so doing by caveats and threats from said Gray, whose pretensions the bill charges are idle and unfounded, and ought not to be regarded by said trustees. The bill then prays, that the aforesaid compromise and consolidation may be decreed to be specifically executed, and all necessary transfers of title made, and that the stock coming to the shareholders of said unincorporated association, may be allotted to them in their respective proportion of stock in said corporation, and especially that the surviving trustees named in the aforesaid deed [**5]  of trust, may be decreed to convey to said corporation the legal title in them vested by said deed, and for general relief.

To this bill Thomas, Gordon and the surviving trustees in the deed from Gray, and the incorporated Santa Clara Mining Association of Baltimore, were made defendants. The exhibits filed with the bill, show that the original articles of association, formed under and in pursuance of said deed of trust, and signed by Gray and wife, provided that the property conveyed by the deed should remain vested in the trustees therein named and the survivors of them, subject to the control and direction of the shareholders of the Association, by a vote of at least two-thirds of the whole number of shares in the affirmative, and that the business of the Association, should be managed by a board of directors, who, or a majority of them, "shall have power with the sanction of a vote of two-thirds of the whole number of shares, to sell any of the lands or mineral rights of the Association, or to purchase other mineral rights and lands, or, if deemed necessary, increase their capital stock," and that the compromise and consolidation referred to in the bill, was made and agreed [**6]  to by a vote of more than two-thirds of the shareholders of the original Association, Gray, however, objecting thereto, and that by the terms of the consolidation, the surviving trustees in this deed of trust, and Thomas and Gordon, bound themselves to do what this bill requires of them.

The answer of Thomas, Gordon, and the surviving trustees in the deed of trust, admit most of the allegations of the bill, but say that after receiving, in October 1855, from the attorney of John B. Gray, a notice or caution not to transfer as trustees any of the property, the respondents Gordon and Thomas, declined to receive and distribute as trustees any more of said stock of the consolidated or incorporated company, wishing the direction and protection of a court of competent jurisdiction in the execution of their duties as trustees, whether in conveying the premises or in receiving and distributing the new stock. These respondents are personally willing as shareholders in the said unincorporated company, to ratify and perfect the articles of consolidation, but, as trustees, are restrained from so doing by the caution aforesaid of Gray, and by the desire to act under the instruction of a court [**7]  of chancery for their protection, being unwilling, without such direction, to receive and distribute certificates of stock, representing property and mineral rights of great supposed value, (the title to a part of which is disputed by Gray,) which certificates will become subject to purchase and sale, and be distributed among the public. These respondents further state, that Gray, who is stated in the bill to have objected to the transfer of the property by the trustees, is not made a party defendant therein, and since the filing of this bill, said Gray and wife have filed their bill in the Circuit Court of the United States, against the said trustee sand others, praying among other things that the consolidation or union of the 19th of July 1855, and any conveyance from the Association to the corporation formed under this union, may be declared null and void, and that the incorporated company may be restrained by injunction, from issuing any stock representing any interest in the property conveyed by Gray and wife to said trustees, and that the latter be restrained from conveying said property to the incorporated company. That upon notice to the trustees and co-defendants, the court [**8]  refused to grant said injunction as prayed, and were of opinion that the act of consolidation ought not to be disturbed, and that the same was legal to all intents, and that on demurrer filed, the court would dismiss the bill.

The case was submitted on bill, answer and exhibits, and from the decree dismissing the bill passed as before stated, the complainant appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

A person having no interest in the question litigated between the parties, to a suit in equity, and against whom no relief is prayed by the bill, is not a necessary party to the suit; whatever rights he may have, he can assert in a proceeding to be instituted by himself.  

COUNSEL:
Robert J. Brent and Henry May for the appellant, argued that the complainant was not bound to make Gray a defendant:

1st. Because he has conveyed all his interests to the trustees Tyson and others, by the deed of the 6th of June 1850, and the articles of Association. He has no other rights than as a stockholder, and every stockholder may equally claim to be made defendant, and unless all are included in the case, the bill would be dismissed on the grounds of the decree appealed from. The trustees alone represent the cestuis que trust, who are numerous, and have agreed to do simply what the cestuis que trust have directed and thus imposed as a duty, and no court of equity will interfere. Hill on Trustees, 278, 471.

2nd. Because the trustees Gordon and others, with [**9]  the consent of the stockholders of the old Santa Clara Mining Company, or a legal majority of them, signed the obligation to accept and distribute the stock claimed by the complainant, in the chartered company, and thus are bound to fulfil their solemn engagement, on the strength of which the complainant purchased the stock of the old Company because of its convertibility into the new.

3rd. Because he is a non-resident, and declines to sue the trustees or enjoin them or make himself a party in this cause.

4th. Because he cannot be affected by the decree prayed for in this bill, as his stock in the old Company cannot be transferred into the stock of the chartered Company, and he cannot be prejudiced, unless he surrenders the same and consents that it be done. It is a hardship upon the complainant, and every other stockholder, to be prevented from enjoying the benefit of this consolidation, because Gray chooses by his mere fiat issued from New York, to enjoin the trustees, and in this way practically supersede the appointed judicial tribunals.

5th. Because as the record shows, he has heretofore claimed the aid of the federal court in Maryland to protect his alleged rights,  [**10]  and the same grounds on which he now rests this his private caveat, have in the judicial tribunal of his own choice been utterly condemned, and in this condemnation he has acquiesced by forbearing to proceed any further with his case.

It will be thus seen, that so far as Gray is concerned, he did, as far back as 1850, divest himself of all legal title by his deed to Tyson and others, for the benefit of the shareholders in the original Association. He, therefore, has no interest whatever except as a cestui que trust, the same as any other stockholder, nor is there the slightest evidence in the record, that he still holds a single share of stock in his hands. His rights as cestui que trust, are fully represented by making Tyson and others trustees, defendants; but he has no such rights, for the consolidation was effected by virtue of powers vested in two-thirds of the shareholders, by the articles of Association signed by Gray himself. Having therefore authorised the sale to the consolidated company, he must take it as legally binding on him, and can only claim to come in for the benefits of the consolidation. The whole case stands thus: If Gray has outstanding adversary rights,  [**11]  they cannot be affected by this suit to which he is no party; if he authorised the trustees to sell and consolidate, then why respect his caveat? The equity rule requiring cestuis que trust to be made parties does not apply in this case, because, with respect to the duty and trust sought to be now enforced, Gray is not even a cestui que trust; the trust of which he was such, was closed by the articles of consolidation, executed under powers granted by him. It is in principle like the case of Goodson vs. Ellisson, 3 Russell, 583. But the rule as to parties in a court of equity, is always in the discretion of the court, for the purposes of equity, and where parties are very numerous or difficult to be brought into the case, it will be dispensed with. 2 Pet., 482, Mandeville vs. Riggs. 10 Wheat., 166, Elmendorf vs. Taylor. 3 Cranch, 221, Milligan vs. Milledge. And in conclusion we say, that the rule as to parties in suits in equity, has been laid down very concisely by the Supreme Court of the United States, in the case of Kerr vs. Watts, 6 Wheat., 559, in these words: "No one need be made a party complainant, in whom there exists no interest, and no one a party defendant from whom nothing [**12]  is demanded." It is seen by the bill in this case, that nothing is demanded of Gray.

No counsel appeared for the appellees.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*449]  LE GRAND, C. J., delivered the opinion of this court.
We do not discover, on an examination of the record in this case, that John B. Gray has any interest whatever in the question litigated between the parties to this suit, and inasmuch as no relief is prayed against him he was not a necessary party. Whatever rights he may have, he can assert in a proceeding to be instituted by himself. 6 Wheaton 550, Kerr vs. Watts. 11 Md. 158, Crook vs. Brown.
Decree reversed and cause remanded. 

8 of 18 DOCUMENTS 

THE AUGUSTA INSURANCE AND BANKING COMPANY OF GEORGIA, vs. EDWIN A. ABBOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 348; 1858 Md. LEXIS 33 

July 22, 1858, Decided 

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

Assumpsit brought on the 10th of December 1853, by the appellee against the appellant, on a policy of insurance underwritten by the defendants through its agents, Page and Banks, at Boston, on a cargo of lumber, to the amount of $ 3500, per Brig Orb, at and from Baltimore to Boston. Plea non assumpsit.

The policy is dated the 28th of October 1852, and insures "Parker Fall for whom it concerns, $ 3500 on lumber, viz., $ 3200 under deck, and $ 300 on deck, per Brig Orb, at and from Baltimore to Boston," and by it the insurers "confessing themselves paid the consideration due unto them for this insurance by the insured, at and after the rate of one per cent and three per cent on deck," take upon themselves perils "of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes or people, of what nation or quality soever, barratry of the master, (unless the insured be owner of the vessel,) and of mariners and all other losses and misfortunes, which have or shall come to the damage of the said property, or any part thereof, to which insurers are liable by the rules and customs of insurance [**2]  in Boston;" "and in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof, the amount of the premium note if unpaid, and all sums due to the company from the insured, when such loss becomes due, being first deducted." It was also agreed, among other stipulations, "that in case of capture or detention, the insured shall not have the right to abandon therefor, until proof is exhibited of condemnation, or of the continuance of the detention (by capture or other arrest,) for, at least, ninety days," and "that the insurers shall not be answerable for any charge, damage or loss, which may arise in consequence of seizure or detention for or on account of illicit or prohibited trade," and "that this policy shall be void in case of its being assigned, transferred or pledged, without the previous consent, in writing, of the insurers."

On the back of this policy was the following endorsement or assignment: "Baltimore, 18th November 1852. I hereby transfer all my right and interest in the within policy to E. A. Abbott, for myself and other owners," (signed) "John H. Frisbie," in the hand-writing of one of the plaintiff's clerks, except the words "for myself [**3]  and other owners," and the signature, which were in the hand-writing of Frisbie the captain, and, at that time, part owner of the vessel. One of the grounds upon which the action was resisted was, that this assignment was illegal, not having been made "with the previous consent in writing of the insurers," according to the condition of the policy.

The lumber was ladened on board the Orb, by the 19th of November 1852, and she sailed on the 22nd of December following, was wrecked in Hampton Roads on the 3rd of January 1853, and by this disaster, loss and damage resulted to the cargo. The defences were, that the policy had been discharged, 1st, by that kind of delay, in the inception of the voyage, which amounted to deviation in construction of law; 2nd, because of misrepresentation as to the time of sailing; 3rd, because of misrepresentation and concealment of material facts as to the condition of the Orb, which, if they had been truly communicated to the defendant's agents, would have caused the risk to have been declined or the premium enhanced; and 4th, because the policy was not certainly intended to cover the cargo of the plaintiff, who had therefore, no such interest in the [**4]  policy as to give him a right of action upon it. Evidence upon all these points was offered by both parties, and is sufficiently indicated in the instructions acted on by the court below, the arguments of counsel, and the opinion of this court. The letter of Frisbie to Fall, so frequently referred to, is as follows:

"BALTIMORE, October 20th, 1852.

MR. FALL:

Dear Sir:--I have taken up two or three times with lumber for Boston, and have to give it up on account of insurance, they cannot get her insured at no price, and I could not get the coal freight to Providence; there was one man said he would load her without insurance, and I waited for him two weeks, and was to commence this morning, and his partner came home and would not let him ship it. I should like for you to see Mr. Mayo, and see what can be done, I do not know of any thing but to go down the bay and buy a load of wood, there is a cargo of plank here already, if you can get it insured, telegraph to Wm. Rhodes as soon as you receive this. and I will have her loaded up and pay her expenses, which I cannot pay without. I have written two or three times before.

Respectfully Yours,

JOHN H. FRISBIE."

1st [**5]  Exception. The plaintiff offered the following prayers:

1st. That the law presumes that the Orb was seaworthy, for the performance of the voyage from Baltimore to Boston, given in evidence in this case, until the contrary is proven, and that the burthen of proof of her unseaworthiness for the performance of said voyage, is upon the defendant.

2nd. If the jury believe from the evidence, that at the inception of the voyage mentioned in the evidence, the Orb was sufficiently tight, staunch and strong, for the performance of the voyage from Baltimore to Boston, with the cargo of lumber mentioned in the evidence, and that she was properly officered, manned and equipped for the performance of said voyage with said cargo, and that on said voyage, through storm and perils of the sea the said cargo was lost in whole or in part, the plaintiff is entitled to recover in this case to the extent of such loss, although the jury shall believe from the evidence, that there was delay or negligence upon the part of the captain of said vessel in commencing said voyage.

The defendant then offered the following prayers:

1st. That the plaintiff cannot recover if the jury believe from [**6]  the evidence, that when the Orb sailed from Baltimore in December 1852, she was not a sufficiently sound and staunch vessel for the voyage, at that season of the year from Baltimore to Boston, with the cargo insured, or if the jury find from the evidence that she was not supplied at that time, nor afterwards with such sails, chains and anchors, as were proper precautions for a vessel of her tonnage, in view of the ordinary and probable perils of said voyage.

2nd. That there was an implied warranty by the plaintiff, that the voyage should be made in the usual and direct course for seaworthy vessels, conveying from Baltimore to Boston such cargo as was the subject of insurance in the policy in suit, and any deviation can only be justified by necessity or lawful cause.

3rd. If the jury believe from the evidence, that the Orb was seaworthy for the purpose of lying in port, that her cargo was on board by the 19th of November 1852, that repairs and supplies had been ordered and contracted for by her master and owners, and had been done and furnished before the 20th of November 1852, that by reason of the refusal or inability of said master and owners, to pay for such supplies and [**7]  repairs, the vessel was seized, detained and sold, under the libel and decree of the Circuit Court of the United States for the District of Maryland, given in evidence, so that she did not in fact sail from Baltimore, by some days, as soon as she would have done in case she had not been so seized and sold, then the plaintiff cannot recover, provided the jury find all the other facts assumed in this prayer, and that no effort to pay for said repairs and discharge said libels was made by the master, by sale or hypothecation of the cargo to a sufficient extent, and that no loss or damage occurred to the cargo insured before the 2nd of January 1853.

4th. If the jury believe from the evidence, that it would have varied the risk and premium, accordingly as the vessel sailed in November or December 1852, so that the risk would have been declined, or a higher premium charged, if it had been known to the defendant's agents at Boston that the Orb would not sail sooner than the 20th of December 1852, and that this was known at the time of the application for the policy sued on by both Parker Fall and defendant's said agents, and that with a view of deciding on this contingency, said agents [**8]  did ask Fall, when he applied for said policy, when the Orb would sail from Baltimore, and that Fall then represented that she would sail soon, and that the cargo insured was in fact ladened on the vessel by the 19th of November 1852, and that full, reasonable and sufficient time, to have been expected by the parties to the contract, for the commencement of the voyage had elapsed by the 25th of November 1852, then the plaintiff cannot recover, if the jury find that the Orb did not sail from Baltimore before the 20th of December 1852, from the causes given in evidence, provided they find that no loss or damage occurred to the cargo insured before the 2nd of January 1853, and also find all other facts assumed in this prayer.

5th. If the jury believe from the evidence, that Fall applied to defendant's agents at Boston, for the policy sued on by direction of John H. Frisbie, contained in the letter of said Frisbie, of the 20th of October 1852, given in evidence, and that at the time of such application, said agents enquired of Fall, where the Orb then was, and what was her condition as to seaworthiness? and that, in reply thereto, Fall represented that the Orb was in Baltimore, and [**9]  was a good old vessel, and on the voyage before she brought a freight of coal from Philadelphia to Charlestown, and on that voyage her cargo was not insured, as the man whom she brought the cargo for never had his cargoes insured as said Fall understood, and that before said letter, of the 20th of October, was written, a cargo of coal which had been put by E. Pratt of Baltimore on board the Orb for conveyance to Providence, had, shortly before the said 20th of October, been necessarily discharged at Baltimore on account of the leaky condition of the vessel whilst said Frisbie was master and part owner of her, and that Frisbie was then advised not to take another cargo of coal, but to freight the Orb with a cargo of lumber, so that her seaworthiness would not be so severely tried, and that accordingly said Frisbie declined an offer from E. Pratt, before the said 20th of October, to freight the Orb again with coal, after the cargo of coal had been discharged as before stated, and if the jury further find, that a vessel must be more strong, staunch and seaworthy, to carry a cargo of coal by sea than a cargo of lumber, and that before the said letter of the 20th of October was written,  [**10]  Frisbie knew that the Orb had been characterised in October 1852, as an unseaworthy vessel, by the report of the inspector of ships for the insurance offices at the port of Baltimore, and that when, as before stated, Fall was enquired of as to the seaworthy condition of the Orb, none of the above facts nor the contents of said letter were communicated by him to the defendant's agents at Boston, except as hereinbefore expressly stated so to have been communicated, and if the jury believe that if the above facts, or most of them, or the contents of said letter had been then communicated to them, said agents would have declined the risk or enhanced the premium, then the plaintiff cannot recover, provided the jury believe the premium had never been paid to the defendant, and all other facts assumed in this prayer, and if they believe the premium has been paid, then the plaintiff is only entitled to recover that and its appropriate interest, in case no fraud was intended by the parties applying for the policy, by the representations made and failure to disclose their information.

6th. If the jury believe from the evidence, that matters material to the risk as affecting the seaworthiness [**11]  of the Orb, and which would have affected the premium or caused the insurance to be declined by the defendant's agents, when application was made for the policy in suit, were either known to Fall or Frisbie, so that they could with reasonable diligence have been communicated to said agents at that time by either of them, and if the jury believe that such facts were not, in fact, communicated to said agents then or before the loss proved in evidence, and that when said application was made, said agents enquired of Fall where the Orb then was, and what was her condition as to seaworthiness, then the plaintiff cannot recover, provided the jury believe the premium was never paid to defendant, and all the facts assumed in this prayer, and also believe that the application was made by reason of the said letter of the 20th of October, and in case they believe the premium has been paid, the plaintiff is only entitled to recover that with its proper interest in the absence of fraud.

7th. That the assured was under an implied warranty that the vessel should sail on her voyage with all safe, convenient and practicable expedition, and that if this was not done by reason of the acts of her [**12]  master or owners, in not providing funds for repairs and supplies furnished said vessel, and if the jury find there was no effort made to obviate this delay, by sale or hypothecation of the cargo in whole or in part, by either master or owner of the Orb, then the plaintiff cannot recover, provided the jury believe that the loss occurred after said vessel sailed in fact, and that the premium was never paid to the defendant, and all other facts assumed in this prayer, and in case the jury believe the premium has been paid, then the plaintiff is not entitled to recover, if they find that the delay of the voyage occurred after the 19th of November 1852.

The court (Frick, J.) granted both the plaintiff's prayers, and also the first prayer of the defendant, but rejected all the defendant's other prayers, and the defendant excepted to the granting of the plaintiff's second prayer, and to the rejection of its prayers.

2nd. Exception. After the evidence had been closed on both sides, and the action of the court as stated in the preceding exception, the plaintiff's counsel opened the case to the jury, was followed by the junior counsel for the defendant, and the senior counsel for [**13]  the defendant then addressed the jury till the adjournment of the court for the day, without concluding, and on the succeeding morning before continuing his argument, offered the defendant's eighth prayer as follows:

8th. If the jury believe from the evidence, that when Fall applied for the policy sued on, he was asked by the defendant's agent at Boston, to whom he applied as to the then condition of the Orb as to seaworthiness, and that Fall was then making said application by virtue of the instructions contained in the letter of Frisbie, given in evidence under date of the 20th of October 1852, and that said letter contained facts or implications connected with the condition of the Orb, at that time, as to seaworthiness, which were not communicated to the insurer's agents at Boston by Fall, and which would, if they had been communicated, have induced the underwriters either to decline the risk or to enhance the premium, and if the jury find that the premium has not yet been paid to the defendant, then the plaintiff cannot recover, though Fall had no fraudulent or deceptive motive in what he did or did not do, provided the jury find all the other facts assumed in this prayer,  [**14]  and if the jury find the premium has been paid, then the plaintiff is only entitled to recover that and its appropriate interest, in case they believe no fraud was intended in the failure to communicate the material information to the underwriter.

The counsel for the plaintiff then stated, they would expect to be heard on this prayer, if the court saw fit to entertain it at all; but the court rejected the prayer, as well because it was offered too late, under the rules of the court, as because it was not the law of the case. To this ruling the defendant excepted.

3rd. Exception. After the trial had progressed, as stated in the preceding exceptions, the senior counsel for the defendant, in the progress of his argument of the facts before the jury, proposed to read to the jury Chancellor Kent's opinion or doctrine on a matter of law involved in the case, as expressed in better language than his own, which being objected to by the other side, the court refused to permit, under the invariable practice of that court since its institution, the law to be read from books, conceding and offering the right of the counsel to state the law to the jury, subject to an appeal to the court [**15]  if dissented from by the other party. To this refusal and ruling the defendant excepted.

The verdict was in favor of the plaintiff for $ 3374.56, damages, with interest and costs, and from the judgment thereon rendered the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A policy of insurance is not a negotiable security, and the general clause, "for whom it concerns," only avails for the person for whose benefit it was intended when obtained, by the party obtaining it, and whether it was so intended for one claiming the benefit of it, is a question of fact for the jury.

Where a policy provides that it shall be void, "in case of its being assigned or transferred or pledged without the previous consent, in writing, of the insurers," an assignment without such consent confers no right upon the assignee.

So far as good faith in obtaining the insurance is concerned, a policy issued "for whom it concerns," stands on the same ground as any other; for every such policy supposes an agency, and one who claims the benefit of it, is bound by the acts and representations of the parties or agents connected with the business of procuring it, although obtained without his knowledge.

If any misrepresentation or concealment of facts material to the risk be shown on the part of the agents or parties obtaining such a policy, it is void, no matter how innocent the party for whom it was intended may be, and no matter whether such misrepresentation or concealment be fraudulent, or the result of negligence or inadvertence on the part of such agents or parties.

The utmost good faith and fair dealing are of the very essence of the contract of insurance, and every fact and circumstance which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium, ought to be communicated to him.

A statement made to the insurers, that the vessel "is about ready to sail," or "she will sail soon," is not a promissory representation as to the time or sailing, which binds the assured and the breach of which will vitiate the policy.

In answer to the question, "what is the condition of the vessel as to seaworthiness?" a representation that she is a "good old vessel," imports no more than that she is seaworthy.

Where a representation is made merely on information, the assured is not answerable for the truth of the facts stated, but only for the truth with which he has stated the information received.

In a policy on a cargo of lumber, the implied warranty is, that the vessel is seaworthy to transport such a cargo, and a statement to the insurers, that on a previous voyage she had carried a cargo of coal without insurance, did not enlarge that warranty so as to require the insured to prove she was seaworthy to carry coal.

The difference between a representation and a warranty is, that while the latter must be literally fulfilled, it is sufficient if the former be substantially complied with.

Seaworthiness is an implied warranty in every contract of insurance, and the assured need not, in the first instance, disclose any fact however material to the risk, which tends to show the ship was unseaworthy when she sailed.

But when inquiries are made as to matters embraced in an implied warranty, such inquiries may render it necessary for the assured or his agent to disclose facts respecting which he might otherwise be silent.

An inquiry, "what is the condition of the vessel as to seaworthiness?" is general and indefinite, not pointing to any particular fact, and imports no more than an inquiry as to whether she was seaworthy.

Such an inquiry imposed no obligation upon the assured, to disclose facts tending to show the insufficiency of the vessel to carry a cargo of coal, or that she had been discredited by the marine insurance reports of the port where she was lying, or that ineffectual attempts had been made to get her insured there.

It is well settled that the assured is not bound to disclose the fact, that the risk has been declined by others or the estimate they put upon it, unless information on the subject be particularly called for.

Under a policy on a cargo of lumber "at and from Baltimore to Boston," the risk commences from the time the lumber is laden on board the vessel, and a deviation thereafter will avoid the policy, whether it occurs before or after the vessel actually leaves the port of departure.

A deviation avoids the policy because it varies the risk, and delay in commencing or prosecuting the voyage is as much a deviation as a divergence from its prescribed course, and will discharge the underwriters if unreasonable or inexcusable, and this rule applies as well to a policy on cargo as on the vessel.

Not to deviate is as much an implied warranty in every insurance on a voyage, as the seaworthiness of the vessel, and each of these warranties is implied whether the policy be on the ship or on the cargo.

A delay, from the 19th of November to the 22nd of December, in commencing the voyage, is unreasonable, amounts to a deviation, and will discharge the policy on the cargo unless it proceeds from causes which justify or excuse it.

What the actual causes of delay are, is a question of fact for the jury; the legal sufficiency of such causes, to justify or excuse it must be decided by the court.

Delay resulting from the difficulty in obtaining a crew is excusable, but if occasioned by proceedings instituted in the Circuit Court of the United States, in admiralty, for the recovery of debts due for repairs to the vessel, by which she was seized, detained and sold, it is not excusable.

The underwriter does not run the risk of obstructions occasioned by the debts, insufficient acquittance, or neglect to pay debts of the assured, and this rule applies whether the policy be on the vessel or on the cargo; detention for such cause is not covered by the terms, "restraints and detainments of all kings, princes or people."

Where a delay in commencing the voyage is occasioned by debts of the vessel previously existing, and contracted without reference to the particular voyage, and the owner of the cargo insured is on the spot, the master cannot sell or hypothecate the same to pay such debts, except with the consent and authority of such owner, whom he must consult.

A prayer, after stating certain facts hypothetically as the basis of the legal propositions, contains the clause, "and if the jury shall find all other facts assumed by this prayer," HELD, that this clause is objectionable as tending to mislead the jury, and vitiates a prayer otherwise good.

The refusal of the court in a trial of a cause at nisi prius, to permit counsel to read to the jury the law from books, is a matter within the discretion of the court, and is not a subject of appeal.  

COUNSEL:
A. S. Ridgely and Wm. H. Norris for the appellant:

1st. The policy was discharged and the underwriters absolved from liability by the unjustifiable delay in commencing the voyage. This delay amounted to a deviation, and the insured on cargo is in no different right in this particular than the policy holder on a vessel. This is irrespective of any representation as to the time of the vessel's sailing. A stipulation against deviation--and delay from unjustifiable cause is deviation--is an implied warranty in every policy of marine insurance. "In short, whenever the delay exceeds a reasonable time, or is incurred for purposes unconnected with the true object of the voyage insured, it will amount to a deviation." (1 Arnould on Ins., 42, 341, 342, 383, 387, 390, 400. 1 Phillips on Ins., secs. 690, 692, 981, 983, 984, 988, 989, 995, 996, 998, 1002, 1020, 1021, 1031, 1050. 9 Mass., 448, 449,  [**16]  Coffin vs. Newburyport Marine Ins. Co. There is no distinction between a policy holder on goods and on the vessel, each is responsible for the master and for deviations. 2 Smedes & Marshall, 375, Natchez Ins. Co., vs. Stanton, et al. Weskitt on Ins., 169, 179. 7 H. & J., 291, Riggin vs. Patapsco Ins. Co. 8 Mass., 321, 322, Cleveland et al., vs. Union Ins. Co. 24 Eng. Law & Eq., Rep., 36, Gibson vs. Small, and same case in 71 Eng. C. L. Rep., 157. Park on Ins., 294, 295. The reason of thus holding the insured on cargo responsible for a deviation is, that a stipulation against deviation is an implied warranty in the policy. It is admitted by the counsel for the appellee, that a deviation in the course of the voyage would vitiate a policy on goods. Why so? The owner of the cargo has no more control over the action of the master as to the prosecution of the voyage, than he has as to its commencement. It is therefore only and solely because of this implied warranty, that the insured on cargo is responsible for a deviation in the course of the voyage. And this same warranty, according to all the authorities, applies as well to a deviation occasioned by an unjustifiable delay in the commencement [**17]  of the voyage, as to an actual turning from the usual route in the progress of the voyage. In addition to the cases before cited, reference is made to the following authorities, all of which were cases of policies on goods, and the distinction here attempted to be drawn was not even alluded to. 14 Eng. C. L. Rep., 4, Hare vs. Travis. 7 Term Rep., 505, Phyn vs. Royal Exchange Ins. Co. 4 Eng. C. L. Rep., 246, 248, Roscow vs. Corson. 55 Eng. C. L. Rep., 781, Oliverson vs. Brightman. 2 Wash. C. C. Rep., 7, Winthrop vs. Union Ins Co. 3 Wash. C. C. Rep., 168, Poppleston vs. Kitchen. 3 Mass., 331, Taylor vs. Lowell. Ibid., 409, Stocker vs. Harris. 3 Pick., 172, Hale vs. Mercantile Marine Ins. Co. 11 Johns., 352, Graham vs. Commercial Ins. Co. 23 Missouri, 553, Salisbury vs. Marine Ins. Co. The ship owner is answerable to the freighter or charterer for the acts of the captain. Abbott on Shipping, 344, 362. 8 Pick., 159, Hobart vs. Norton. 5 Ohio, 436, Lodwicks vs. Ohio Ins. Co. The delay of the vessel in this case, in port, by the libels from the District Court, for supplies furnished anterior to the 20th of November 1852, is a clear deviation, for which the shipper of goods is answerable [**18]  by the discharge of his policy, and his remedy is against the owners or master, for not having liquidated these bills and enabled the vessel to sail. It was competent for the master to have sold or hypothecated the cargo to enable his ship to sail. Abbott, 372, note 2. 9 Johns., 30, Fontaine vs. Columbian Ins. Co. 3 Story's Rep., 491, 492, Pope vs. Nickerson. 3 Mason. 260, Ship Packet. The shipper could have unladened his cargo and sued the owners for expenses and damages, if the vessel was detained by the neglect or inability of the captain to pay for these supplies and repairs, (Abbott, 412, notes,) though it is not contended, that the liability of the ship-owner for a loss on the cargo, by the fault of the master and crew, necessarily exonerates the underwriters. 1 Phillips, sec. 1052.

It is supposed by the counsel for the appellee, that whatever might have been the law in earlier days, that a different rule has been recently established in this State, by the case of Georgia Ins. & Trust Co., vs. Dawson, 2 Gill, 369, 370. But that case merely established, that the negligence of the master as to the stowage of cargo, was neither covered by implied warranty nor by any express [**19]  one in the policy in suit. Mr. Phillips cites the case without any suspicion that it was introductory of any change in the law of deviation. 1 Phillips, 592. The fact is, there are certain implied warranties, which if fulfilled at the commencement of the risk, make the negligence of the master and crew thereafter chargeable to the insurer, if loss occurs from any of the enumerated perils, and this Maryland case is an instance. But there are other implied warranties which remain in obligation to the end of the voyage, and any breach of them by the master or mariners is at the risk of the insured. Such is the implied warranty as to deviation. After stating the law as to the first class, and the doctrine of proxima causa, Mr. Phillips, (sec. 1050,) says: "This doctrine is limited to the acts and neglect of the master and crew, as such, in conducting the voyage or in charge of the subject. It intercepts and prevents a forfeiture of the insurance by reason of unseaworthiness, resulting from or continuing by reason of carelessness or mistake of the master or crew, but it does not prevent a forfeiture by deviation, which is in effect a violation of an express stipulation of the policy, imported [**20]  by the mere description of the voyage," Nor is the law of deviation simply applied to the commencement and course of the voyage. A tardy landing of goods at the port of destination, is a deviation which discharges the underwriter. 1 Phillips, sec. 998. Nor is the law silent as to the specific cause of deviation in this case. "The doctrine is laid down in La Guidon de la Mer, that the underwriter does not run the risk of obstructions occasioned by the debts, insufficient acquittance or neglect to pay debts of the assured. The underwriters were held, in New York, not to be liable for the aggravation of a loss, by reason of the assured's not providing for supplying means to the master of an American vessel, to raise funds to repair at the island of St. Thomas in the West Indies." 1 Phillips, sec. 1046. 20 Wend., 287, American Ins. Co., vs. Ogden. 1 Camp., 265, Jarratt vs. Ward. What facts constitute a deviation, is a question of law for the court, and "the court and not the jury are the judges whether the deviation be justifiable." 7 H. & J., 291. 2 Phillips, 585. 2 Smedes & Mar., 375.

2nd. The policy was discharged or rendered void, by the misrepresentation or concealment of material [**21]  facts connected with the condition of the vessel. As to this part of the case, it is contended by the counsel for the appellee, that being insured on cargo, and as the policy was "for whom it concerns," he cannot be affected by the acts or misrepresentation and concealment of the captain acting for the owners of the vessel, or of his agent Parker Fall. This presents, first, the inquiry, whether a policy "for whom it concerns" can possibly be used by any one, free of responsibility for the acts and omissions of those who in fact obtained it? They certainly act as agents "for whom it concerns," either originally or by adoption. 7 H. & J., 450, Newson vs. Douglass. The subsequent adoption of this policy cannot exempt it from the law of concealment, and of fraud or misrepresentation in its procurement; for all such policies presuppose an agency, and that the parties obtaining them are the agents of those who adopt and use them. The proof shows who ordered the policy, and who applied for it. Abbott is, therefore, answerable for Frisbie and Fall and each of them. That the verdict found the vessel seaworthy, does not dispense with the doctrine of misrepresentation and concealment in relation [**22]  to her seaworthiness; for there are grades and degrees of this, which affect the risk and vary the premium, or cause an insurance to be declined. The first step is to ascertain the general principle which is to be the law of duty to agents applying for insurance. It is the familiar one of uberrima fides. 2 G. & J., 162, Allegre vs. Maryland Ins. Co. We are next to see the principles of construction, which are to expound any representation made, premising that "the object of the assured in making a representation usually is to reduce the premium by showing the real to be less than the apparent risk." 2 Duer on Ins., 656. 1 Arnould, 489, 492. "A representation imports not only what is expressed, but also all the natural and obvious inferences from it." 1 Phillips, secs. 567, 550. The "insured is required, as a preliminary step, to communicate to the underwriter all other" (excepting those the underwriter is bound to know) "material facts within his knowledge, or presumed to be so, or of which he is bound to be informed, that would directly tend to induce the underwriter not to subscribe the policy at all or to demand a higher premium." 1 Phillips, sec. 571. There is an additional principle [**23]  which affects and controls the preceding one, as to representation and concealment; "matters of implied agreement in the policy need not be represented by the assured in the first instance, but he is bound to make true answers to inquiries by the underwriter, relating to matters of implied warranty. And though no such inquiries are made, still, if the assured voluntarily make representations of this description, he will be bound thereby, and the policy will be void unless they are substantially true." 1 Phillips, sec. 601. 1 Arnould, 515, 517, 518. 2 Duer, 572 to 581. The duty of the assured to answer truly questions, as to matters covered by implied warranties, shows that there are grades of differences in those matters, which may affect the underwriter's judgment as to taking the risk at all, or the premium at which it will be taken. In other words, that the underwriter wishes to know more than the mere implied warranty of itself communicates. 1 Phillips, sec. 586. 8 Pet., 581, Hazard vs. New England Marine Ins. Co. The moment, therefore, that the underwriter inquires as to such matters, the whole law of concealment and representation is brought to bear on the assured. As to the [**24]  points enquired of, the assured is in the predicament as to disclosure and truthfulness, which the law imposes on him as to other matters which he is bound to communicate and represent truly to the underwriter in the first instance. 1 Phillips. sec. 601. 4 East., 590, Haywood vs. Rodgers. Now, if seaworthiness were not a matter of implied warranty, what would the assured in this case have been bound to apprise the underwriters of, under the rule requiring him to inform them "of all material facts within his knowledge, or presumed to be so, or of which he is bound to be informed, that would directly tend to induce the underwriters not to subscribe the policy at all, or to demand a higher premium?" If the inquiry had been made as to her then condition of seaworthiness, would not the owner of the vessel in the case of Haywood vs. Rodgers, have been bound to communicate the letter, which stated that "the ship was in very good order, but that he had a survey on her on account of her bad condition?" "A question of seaworthiness is determined by the usages of the port where the vessel is fitted out, in reference to the destined voyage." 8 Pet., 581. Seaworthiness is variable, and relates [**25]  to the voyage and cargo to be transported. 1 Phillips, sec. 720, note 3. The implied warranty only relates to seaworthiness, for the voyage proposed with the cargo proposed. The proof shows, that a vessel may be seaworthy to carry lumber and not so to carry coal. The verdict has only found, that the vessel was seaworthy to transport lumber from Baltimore to Boston. But that was not the inquiry put to Parker Fall, nor was that the representation he made. The insurer had the right to make the inquiry as to the general seaworthiness of the vessel, and it was the duty of Frisbie to have provided his agent with the means of fully answering the question, and more especially the duty of Fall to have supplied the insurers with all the information that had been communicated to him by Frisbie's letter of the 20th of October 1853. This was required by the law of concealment after the inquiry had been made. 2 Paine's C. C. Rep., 84 to 90, Buckly vs. Providence Ins. Co. The fallacy is in supposing, that, as the verdict has found seaworthiness for the particular voyage with the particular cargo, nothing has been concealed and nothing misrepresented. But as it often happens that the representation [**26]  of the assured, or information of the insurer, reduces the implied warranty in favor of the assured, (1 Phillips, sec. 602; 2 Duer, 671,) so, on the other hand, when inquiry is made that may call for disclosure of facts beyond those covered by the implied warranty, the representations made may avoid the policy by their untruthful or deceptive character, even though the implied warranty is complied with. 2 Duer, 670, 671. 1 Phillips, sec. 586. In Hazard vs. New England Marine Ins. Co., 8 Pet., 581, the court says: "A question of seaworthiness is determined by the usages of the port where the vessel is fitted out, in reference to the destined voyage. But the facts stated in a representation, may go beyond those usages; and the insured is bound to the extent of his communication, whether verbal or written. In the one case the law implies a definite and fixed responsibility; in the other the liability depends on the express declaration of the insured." Whilst, therefore, the insurance was on a lumber cargo, the general inquiry as to her then condition of seaworthiness, called for the communication of the facts, that the marine report at Baltimore had discredited the "Orb" as unseaworthy,  [**27]  that she had proved incapable of conveying coal, that her captain had declined a cargo of coal offered by Pratt, and that the letter of the 20th of October also indicated to Fall that she was not deemed fit to transport that kind of tonnage. Yet, in the face of these facts, known either to the captain who ordered the insurance or to his agent who applied for it, the representation was made that she was a "good old vessel," and had "carried coal on her last trip from Philadelphia to Charleston, for a man who was not accustomed to insure his cargoes. 2 Duer, 442, 443. Whether this concealment or misrepresentation was fraudulent or innocent is wholly indifferent, provided it has reference to material facts. 2 Duer, 411, 412, 420 to 422. 20 Eng. Law & Eq. Rep., 341, Anderson vs. Thornton. 1 Arnould, 536, 537. 20 Maine, 130, Dennison vs. Marine Ins. Co. And the information must be all that the latest reasonable diligence could have communicated to the underwriters. 11 G. & J., 256, Neptune Ins. Co. vs. Robinson. 1 Pet., 170, M'Lanahan vs. Universal Ins. Co.

3rd. Abbott had no interest in the policy, and it was not certainly obtained for him but for any one who might freight the vessel;  [**28]  the clause, "for whom it concerns," does not in such case dispense with the necessity of an assignment under the conditions of the policy. These words do not make the policy a negotiable instrument; they are only meant to conceal an existing fact, and are not so elastic as to cover any one who may come in afterwards. The party who seeks to obtain the benefit of such a policy, must have been in the contemplation of the party procuring the insurance, at the time it was procured. 7 H. & J., 450, 451, Newson vs. Douglass. 1 Phillips, 214. All the proof shows that this policy was not certainly intended for Abbott; the assignment of the policy to him especially confirms this. At all events, it was, upon the evidence, a question for the jury that the policy was merely got in the hope and expectation that Abbott would ship, and that failing, to induce somebody to freight the vessel; and if they so found, this could not, upon the authorities just cited, be considered an insurable interest in Abbott at the time of the policy.

4th. The eighth prayer of the defendant was seasonably presented. Though the law of it is raised by the plaintiff's second prayer, yet it was competent for the defendant,  [**29]  more specifically to raise the point as to the immateriality of Fall's want of fraudulent and deceptive motive.

5th. The defendant's counsel was entitled to read to the jury the language of Chancellor Kent, subject to the right of objection on the other side, as to its applicability or correctness. 6 Porter, (Indiana,) 40, Selby vs. Wilcox.

St. Geo. W. Teackle and George M. Gill for the appellee:

The proof shows, that Frisbie was to get an insurance to cover the cargo to be put on board by the plaintiff, and the plaintiff was, at the time, in the contemplation of the party procuring the insurance, and the party for whose benefit it was intended. It is immaterial whether Fall then knew for whose benefit it was intended, as he acted under the authority of Frisbie and as his sub-agent, and in this respect this case is similar to that of Newson vs. Douglass, 7 H. & J., 452. Hence, the plaintiff by his subsequent adoption of this policy, had a right to avail himself of it, and such adoption is deemed equivalent to his prior order for insurance.

A difference exists between such a case as this, and the case where the party desiring insurance applies by himself or his agent [**30]  for insurance. An insurance company is bound to be doubly careful when it issues a policy "for whom it concerns." It cannot know for whose benefit it will ensure, or who will claim under it or what use will be made of it. 5 Cranch, 100, Hodgson vs. Marine Ins. Co. of Alexandria. It must have been issued in this case to give credit to the Orb, and to enable those interested to obtain a freight for her. Here an innocent party who made no representations, who authorised none to be made for him, and who has selected a vessel seaworthy and fitted for the destined voyage with the destined cargo, is sought to be affected by what is alleged to be a concealment of what are said to be material facts, made before he had adopted the insurance, and under circumstances with which it was almost impossible for him to be acquainted, and which, if in point of fact they existed, were unknown to the plaintiff when he adopted the policy. To make him responsible under these circumstances, would be to visit him with the punishment of a wrong-doer, and to enable a party who has caused a wrong to be done him to escape. The insurance company which issues a policy such as this, cannot escape upon a ground of [**31]  this kind, without bringing home to the plaintiff some participation in the wrong complained of. By issuing this kind of policy a limited negotiability, at least, is given to it, for whosoever was in the contemplation of the party obtaining it, may, although he knew nothing of what had been done, when it was done, by subsequent ratification without limit as to time, or, at least, until the actual satisfaction of the policy, claim the benefit of it. 2 Maule & Selw., 385, Hagedorn vs. Oliverson. It is therefore insisted for the appellee:

1st. That under the circumstances of this case, the plaintiff, for whose benefit the policy was issued, was only bound to see that the vessel on board of which his cargo was put, was seaworthy, well fitted, manned and equipped, at the inception of the voyage; and that he is not responsible for the acts of the master and mariners of the vessel, in respect to the mode of conducting the voyage. In support of this view, see 2 Gill, 370, Georgia Ins. & Trust Co. vs. Dawson; 5 Mees. & Wels., 415, Dixon vs. Sadler, and same case in 8 Mees. & Wels., 896; 11 Pet., 224, Waters vs. Merchants Louisville Ins. Co.; 1 Kernan, 9, Mathews vs. Howard Ins. Co.

2nd.  [**32]  In Maryland, "underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the negligence of the masters and mariners," (2 Gill, 370,) and this rule applies to all cases involving the negligence of the master and crew, such as taking in sail, steering the course, trimming the ship, selecting the route, in stopping in port, in hastening or retarding the operations of the voyage; for all these might be remotely connected with the loss. This rule might not apply to a deviation in its broad sense, or a breaking up of the voyage, upon the ground that there is an implied warranty in the policy, that the voyage between the points designated is to be performed; but this implied warranty does not require this to be done with the utmost speed practicable. But this rule does and must apply to a delay in commencing the voyage, arising from the negligence or default of the master where the cargo is insured, and belongs to a party not the owner of the vessel, and when the owner of the cargo has used due diligence in shipping it. This is now the received law of this country and of England. See 10 East, 415, Bowden vs. Vaughan,  [**33]  and 2 G. & J., 160, Allegre vs. Maryland Ins. Co., where the distinction is drawn between the case where the assured owns both vessel and cargo, and where he owns only cargo. No such laches on the part of the master can affect the holder of a policy on cargo. The case in 2 Smedes & Mar., 340, is not against us in view of the facts of the present case, and if it is, it is not the law of Maryland, for it is in direct conflict with Dawson's Case, in 2 Gill, 370, and cannot be regarded as authority by this court.

3rd. There was no stipulation on the part of the assured, that the vessel was to sail by any particular day. The insurers might have inserted such a provision in the policy, or have advised the assured in time before the sailing of the vessel, that they relied upon Fall's statement, that she was "about ready to sail" or "would sail soon," as a representation, neither of which was done, and no advantage can now be taken of this defence. 1 Camp., 119, Beckwith vs. Sydebotham. 2 G. & J., 160. 10 East., 415.

4th. But if there was any delay or detention it was excusable. It was caused by the proceedings of a court of competent jurisdiction, and without fault or omission by [**34]  the assured, the owner of the cargo. The insurers take upon themselves by this policy, perils "from restraints and detainments of all kings, princes or people, and barratry of the master, (unless the insured be the owner of the vessel,) and of mariners." The detention here, arose from liabilities of the vessel to material men. The owner of the cargo was under no obligation to pay these liabilities. It was the duty of the owner and master to pay them. Can their failure affect the assured the owner of the cargo? In this policy the distinction is made between the owner of the vessel and cargo in respect to barratry of the master, and this distinction prevails throughout. In the case of the Patapsco Ins. Co. vs. Coulter, 3 Pet., 236, it was decided, that where the policy covers the risk of barratry and fire be the proximate cause, the courts will not sustain the defence, that negligence was the remote cause. The law cited on the other side, applies only to voluntary deviations. Here, for part of the time it was impossible to get a crew, and for the rest of the time the libels detained the vessel. The inability to obtain a crew is by all the authorities sufficient to excuse a delay; for [**35]  a crew to navigate the vessel is just as necessary to her seaworthiness as the planks on her bottom. Before this difficulty was removed, she was detained by the libels under which the marshal had power to seize and detain her. But it is said the plaintiff ought to have paid these claims. This we deny. The plaintiff was a mere freighter not chartering the vessel and was not bound to pay these port charges. Where a voyage is once commenced the master may sell or hypothecate the cargo, in order to complete the voyage, but this law has no application to the case of a ship lying in port before the voyage is commenced; it applies to the case of completing a voyage begun, not to charges incurred before that time.

5th. The evidence in the case, shows that the detention did not increase the risk and was immaterial. The first libel was filed on the 30th of November, at which time the vessel was not ready to sail, and she could not have sailed until December, even if not detained by the libels. The proof shows, that December was more dangerous than November, but this proof applies to the entire month of December. 2 G. & J., 160.

6th. The insurance in this case being "for whom it concerns,  [**36]  " and being intended to induce the plaintiff to ship a cargo by the Orb, and having been obtained without any previous authority to do so from the plaintiff, he is not bound by any acts, representations or concealments, if any, on the part of the captain or Fall, and is not responsible therefor to any extent whatever. His subsequent ratification of the policy does not make him responsible for their conduct in effecting it, unless he was in some way apprised or informed of such conduct. In this respect, it differs from an ordinary insurance, which could be effected only by the party insured, or some one acting in his behalf, or by his authority previously given. The defendant, by issuing a policy in this form, has induced an innocent third party without knowledge or notice of the conduct or acts complained of, to accept the insurance and ship his cargo upon the faith of it. 1 Term Rep., 12, Fitzherbert vs. Mather. 4 Mason, 74, Ruggles vs. General Interest Co. 12 Wheat., 414, General Interest Co. vs. Ruggles. 5 Cranch, 100, Hodgson vs. Marine Ins. Co.

7th. There is no evidence that there was any concealment or misrepresentation on the part of Frisbie or Fall, and none is pretended [**37]  on the part of the plaintiff. Banks says, that Fall represented that the vessel was then at Baltimore, that she was about ready to sail from there bound to Boston. Fall states, he represented that the brig Orb was then at Baltimore, and that she would sail therefrom soon, on the voyage insured, but no particular time was stated when she would sail. On this point see 1 Camp., 119; 2 G. & J., 159. Again, Fall made a representation as to the seaworthy condition of the vessel, and being asked what was the condition of the vessel, he represented that she was a good old vessel. When this representation was made, the agent referred to the Boston marine inspector's report, which showed the age of the vessel and her rate as B. 1. Fall also represented, that on the voyage before she brought a freight of coal from Philadelphia to Charleston, and that the cargo was not insured, that the man whom she brought the coal for never had his cargoes insured as he understood. Fall says he made no untrue statement, and none which was designed to deceive or mislead the underwriters; that he had no interest and no object except to accommodate Frisbie and assist him in getting business. There was no misrepresentation,  [**38]  either as respects the time of sailing nor as to the actual condition of the vessel. The jury have found that the vessel at the commencement of the voyage was seaworthy, that she was sufficiently tight, staunch and strong, for the voyage insured with the cargo insured, and that she was properly officered, manned and equipped therefor, and they have therefore found the truth of every representation made as to the condition of the vessel, and there is no proof that any statement was made which was not true. Was there any concealment as respects Fall? It is contended, that he ought to have shown the letter from Frisbie to him, of the 20th of October. This letter showed nothing beyond the fact, that Frisbie could not get insurance in Baltimore, and desired Fall to get it in Boston. Now it is well settled law, that the assured is not bound to state to the underwriters, that he has applied to others who refused to insure. 4 Mason, 83, Ruggles vs. General Interest Co. Fall states that he had no conversation and no communication with Frisbie, in relation to any prior application for insurance, and that he was not able to state in what condition of repair the vessel was in when at Baltimore [**39]  in the fall of 1852, or whether she was seaworthy, but from what he had heard of her, he should say she was fit to carry a cargo of lumber from Baltimore to Boston, at that time. So far then as respects Fall, there was no concealment; he replied fully, frankly and truthfully, to the question put to him. He was not asked as to whether there had been any previous application to insure, and was not bound to refer to this as no such matter was inquired about. As respects Frisbie, it is proved by the two witnesses at Boston, that he was not present when these representations were made, and his own testimony, although differing as to the fact of his being present at some time, yet it confirms what the others say so far as these representations were made, and that if made at all, they were not made in his hearing. But it is said Frisbie knew all the circumstances which had taken place at Baltimore, and was bound to communicate them to his agent Fall, so that the latter might have made them known at the time he applied for insurance. On this subject, the case of Haywood vs. Rodgers, 4 East., 590, is directly in point. In that case the principle is laid down, "as an assured impliedly warrants [**40]  the ship insured to be seaworthy, what forms an ingredient in seaworthiness is not necessary to be disclosed by the assured in the first instance, unless information on the subject be particularly called for, and then the assured must disclose truly what he knows in the respect required." See also 3 Kent, 286. The only inquiry here made was general in its character, no particulars are specified. Again, a party making a concealment or misrepresentation, must know that what he states is false. When Fall said she was a good old vessel, he said what he believed was true and what the jury have found to be true. To constitute concealment facts must be kept back not opinions. There is no evidence that the plaintiff or Frisbie, knew that the Baltimore Marine Insurance Reports had discredited the vessel by rating her B. But suppose they did, the defendant's agents took the risk upon the Boston report, not on what Fall told him.

8th. All the prayers of the defendant, except the first and second are fatally defective in form, and for this reason ought not to have been granted. They all contain this clause, "and if the jury shall find all the other facts assumed in this prayer." This is a [**41]  fatal defect, for if any facts are assumed the prayer is bad, and if there are none assumed the clause tends to mislead the jury.

9th. The ruling of the court in the second exception was correct, for under the rules and practice of that court, the counsel had no right to offer the prayer at that stage of the case. Besides, the law of it was erroneous, if the positions we have already argued are sound.

10th. The court below was right in refusing to permit counsel in the argument of facts before the jury, to read the opinion of judges from law books, on a point of law which the court had decided by its action on the prayers presented in the case. If this were permitted, there would be no means of reviewing in the court above the legal propositions insisted on, and the right of appeal would thus be virtually destroyed.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*372]  BARTOL, J., delivered the opinion of this court.
This action was instituted by the appellee, on a policy of insurance made by the appellant, upon a cargo of lumber per brig Orb, at and from Baltimore to Boston. The policy was issued in the name of "Parker Fall, for whom  [**42]   it concerns;" and the first question presented for our consideration is, whether the appellee has such an interest in the policy as to give him a right of action upon it? The evidence shows that the brig was lying at the port of Baltimore, and that Frisbie, the captain and part owner, employed Parker Fall, as his agent at Boston, to obtain insurance on a cargo of lumber, in order to enable him to procure freight for the vessel; that the appellee had told Frisbie he would freight the brig with lumber if an insurance could be obtained upon it, but did not expressly authorize either Frisbie or Fall to obtain the policy in question, nor had he any knowledge of it until after it was issued, when he adopted it, and, upon the faith of it, placed his cargo on board.
The assignment of the policy by Frisbie to Abbott, made on the 18th day of November 1852, not being made "with the 

 [*373]  previous consent in writing of the insurers," as required by its terms, conferred no right upon the assignee, and his interest in the contract must be determined as if that assignment had not been made.
The law is well settled, that a policy of insurance is not a negotiable security. The Court of [**43]  Appeals have said, that "A policy in the name of one, with the general clause for whom it may concern, will cover and protect the interest of any person for whose benefit it was intended, and who authorized it to be effected; and if, in the absence of any express order or authority from the owner, or any previous communication with him on the subject, such policy is effected in his behalf, the intention at the time of the party effecting it to cover his particular interest, will so connect him with the policy as that his adoption of it afterwards, will cause it to inure to his benefit. The subsequent adoption of a policy by a party interested, and for whose benefit it was intended, being deemed equivalent to his prior order for insurance. But no one can, by subsequent adoption, avail himself of such a policy who was not at the time in the contemplation of the party procuring the insurance, and for whose benefit it was not intended, notwithstanding any interest he may have in the thing insured." Newson's Admr. vs. Douglass, 7 H. & J. 417, 452.
In this case it is contended, on the part of the appellant, that the policy on which the action was brought, was not intended to [**44]  cover the particular cargo of Abbott; but that it was procured at the instance of Captain Frisbie, for the purpose of enabling him to obtain freight, and was designed to cover any cargo of lumber which he might obtain for the vessel, no matter from whom. If that be so, then upon the authority cited, the appellee cannot maintain his action upon it.
But it is properly a question for the jury to determine, from the evidence, whether the policy in question was or was not designed, when obtained, to cover the particular cargo of the appellee, and the Superior Court erred in taking that question from the jury. The second prayer of the plaintiff, which was granted by the court, treated the policy as if it had been issued to Abbott himself, or in his own name.

 [*374]  The next question presented by the record, is whether, in obtaining the policy, there was misrepresentation or concealment of material facts connected with the condition of the vessel? This depends upon the particular facts and circumstances which attended the obtaining of the policy; but before proceeding to an examination of them, it is proper to say that we do not concur in the view taken by the appellee's counsel [**45]  in the argument, "that a difference exists between such a case as this and the case where a party desiring insurance applies for it by himself or his agent." So far as the question of good faith in obtaining the insurance is concerned, the case where the policy is issued "for whom it may concern," stands upon the same ground as if the name of the assured were inserted. "Every such policy supposes an agency;" (7 H. & J. 450;) no one can avail himself of it, but he for whom it is intended, and although obtained without his knowledge, and without any previous authority to the agent, its adoption by him afterwards, binds him to the acts and representations of the parties or agents connected with the business of procuring it, to the same extent as if they had acted under his authority previously given. See Park on Insurance, 208.
In this case, therefore, the appellee is responsible for the acts of both Frisbie and Fall, in their dealings with the company, and if any misrepresentation or concealment of facts material to the risk, be shown on the part of either of them, the policy would be void, no matter how innocent the appellee might be in the transaction; and no matter whether [**46]  such misrepresentation or concealment be fraudulent, or result from negligence or inadvertence on the part of the agents connected with the business of procuring the insurance. 12 Wheaton 412. 4 Mason's Rep., 74. 1 Term 12. 3 Kent 286.
This results from the nature of the contract: "The utmost good faith and fair dealing are of its very essence, and every fact and circumstance which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium he will underwrite it, ought to be communicated to him." 2 G. & J. 162.

 [*375]  In this case, the representations of Parker Fall to the agent of the appellant, were made in answer to the question, "Where is the Orb, and what is her condition as to seaworthiness?" The reply was, "She is at Baltimore, about ready to sail, (or she will sail soon.) She is a good old vessel; on the voyage before, she brought a freight of coal from Philadelphia to Charlestown, and the cargo was not insured; that the man for whom she brought the coal, never had his cargoes insured, as I understood."
The policy was dated [**47]  the 28th day of October 1852; the vessel did not sail till the 22nd day of December 1852.
The objection of the appellant, that the statement made as to the time of sailing, was a promissory representation which bound the assured, and that the breach of it vitiates the policy, is conclusively answered by the decision of the Court of Appeals, in the case of Allegre's Admr. vs. The Maryland Ins. Co., 2 G. & J. 136, and was abandoned by the counsel in the argument. The time of sailing is not, therefore, material in the consideration of this branch of the case. As to the statement that she was "a good old vessel," according to our construction of those words, they import no more than that she was seaworthy, a fact the truth of which it was proper to submit to the jury upon all the evidence; but that is embraced in the implied warranty, and does not stand upon representation, which is always matter outside of the policy.
It has been argued that the statement made by Fall, "that the Orb had carried a cargo of coal on her previous voyage from Philadelphia to Charlestown for a man who did not insure," &c., was equivalent to a representation that she was then capable [**48]  of transporting such a cargo, and that there was evidence tending to show the same was not true. In support of this construction the counsel cited 1 Phillips on Insurance, sec. 567, where the principle is stated, "that a representation imports not only what is expressed, but also all the natural and obvious inferences from it." Without impugning the principle, it is sufficient to say, we do not consider that it sustains the view contended for here. It is not pretended the particular fact stated was untrue; besides, the statement was 

 [*376]  made merely on information, and in such case the assured "is not answerable for the truth of the facts stated, but only for the truth with which he has stated the information received." 1 Arnould, sec. 193.
Nor did that statement, in our opinion, operate to change the contract. The policy issued was on a cargo of lumber; the implied warranty was that the Orb was seaworthy for the transportation of such a cargo, and the statement made to the agent of the underwriter did not enlarge that warranty so as to require the assured to prove that the brig was seaworthy for the transportation of coal at the time of the contract. The difference [**49]  between a representation and a warranty, is, that while the latter must be literally fulfilled, it is sufficient if the former be substantially complied with. In the language of Lord Mansfield, in 1 Term Rep. 345, "A representation may be equitably and substantially answered; but a warranty must be strictly complied with."
Having disposed of the question of allegatio falsi, we have next to consider whether there was suppressio veri in obtaining the policy? It is undoubtedly true that a concealment of facts material to the risk, which the assured is bound to communicate, stands upon the same ground and has the same effect as a statement of material facts which are untrue, and will avoid the policy, whether such concealment be through design or from inadvertence. This brings us to the inquiry, what facts is the assured bound to communicate?
In this case the alleged concealment has reference entirely to matters touching the seaworthiness of the vessel, or going to show that the risk had been declined by others. The authorities all agree, that "if the subject on which disclosures would otherwise be requisite, be covered by a warranty either express or implied,  [**50]  in that case it need not be matter of representation." (3 Kent 286.) "And as in every contract of insurance there is an implied warranty of seaworthiness, the assured need not, in the first instance, disclose any fact, however material to the risk, which tends to show that the ship was unseaworthy when she sailed." Haywood vs. Rodgers, 4 East, 597. 1 Arnould 56.

 [*377]  It is true this rule is changed when inquiries are made as to matters embraced in an implied warranty. Such inquiries may render it necessary for the insured, or his agent, to disclose facts respecting which he might otherwise be silent. See 1 Phillips, sec. 601. 1 Arnould 518. And it has been argued that the inquiry addressed to Fall, in this case, "What is the condition of the Orb as to seaworthiness?" imposed upon him the obligation of disclosing--
1st. The contents of Frisbie's letter of the 20th of October.
2nd. The facts and circumstances which had occurred in the port of Baltimore, tending to show the insufficiency of the brig to carry coal.
3rd. The fact that the marine reports in Baltimore had discredited her as unseaworthy.
It is clear that there was no obligation upon the [**51]  assured, or his agents, to disclose any of these things, unless particularly interrogated with regard to them. The insurer had an undoubted right to ask for information upon such matters, and if he had done so, the assured would be bound to make true answers to such inquiries; but in this case no such inquiry was made. The question was general and indefinite, not pointing to any particular fact; it imported no more than an inquiry as to whether the Orb was seaworthy, and imposed no more obligation upon the assured to disclose the matters alleged to have been concealed, than if no question had been asked. The rule is well settled, that the assured is not bound to disclose the fact that the risk has been declined by others, or the estimate they put upon it, unless information on the subject be particularly called for. See Ruggles vs. The General Interest Co., 4 Mason 83. 3 Kent 286.
Upon these grounds we are of opinion, that even if the facts and circumstances to which we have referred were all proved, the agents of the assured were not bound to disclose them, and consequently the omission to do so, would not impair the policy. But the letter of Frisbie, and the other facts [**52]  and circumstances detailed in the evidence, relating to the condition of the Orb, were all proper to be submitted to the jury, 

 [*378]  and considered by them, in deciding the question of the seaworthiness of the vessel.
The remaining question to be considered, is, whether the underwriters have been discharged by a deviation? The proof in the cause is, that the cargo was laden on board by the 19th of November, and that the vessel did not sail till the 22nd of December, and it is contended that this delay in the sailing of the vessel amounted to a deviation, which discharges the insurer.
This being a policy on a voyage at and from Baltimore to Boston, the risk commenced from the time the lumber was laden on board, and a deviation thereafter will avoid the policy, whether it occurred before or after the vessel actually left the port of departure.
The law on this subject is well stated by Arnould, Vol. 1, page 383, sec. 146. He says: "As the sole ground upon which a deviation discharges the underwriter, is, that it varies the risk, and as it is evident that the risk may be as much varied by a delay in commencing or prosecuting the voyage, as by a divergence [**53]  from its prescribed course, it follows that every such delay, if unreasonable or inexcused, will discharge the underwriter." This principle is sustained by the authorities there cited, and recognized in every elementary treatise on insurance.
In this case it is contended, that the insurance being on the cargo, and not on the vessel, and the appellee not being the owner of the brig, and having no control over her, is not responsible, even though the delay amounted to a deviation; and in support of this view the cases in 5 Mees. & Wells. 415, 8 Mees. & Wells. 896, and 2 Gill 365, have been cited. But those cases did not involve the question of a deviation; they turned upon the familiar principle causa proxima non remota spectatur, and affirm the rule, that when the immediate cause of the loss is one of the perils insured against, the underwriter is bound, although a remote cause may be negligence or unskilfulness on the part of the captain and crew engaged in navigating the vessel. The cases in 3 Peters 222, and in 11 Peters 224, are to the same effect.

 [*379]  The law of deviation stands upon entirely [**54]  different ground. The inquiry is not whether the loss resulted in any manner from the deviation. Park on Ins., 294. The reason why it is held to avoid the policy, is because it changes the risk, and substitutes a different voyage for the one insured against.
It is as much an implied warranty in every insurance on a voyage, that the ship shall not deviate, as it is that the ship is seaworthy; and each of these warranties is implied, whether the insurance be on the ship or on the cargo. After a careful examination of the numerous authorities cited in the argument, and many others, we have been unable to find any one sustaining the distinction so much insisted on at the bar, between the assured on the vessel and on the cargo, where the question of avoiding a policy by deviation has been involved, although in many of the cases such a distinction, if it existed, might have been properly recognized.
The same observation was made by the learned judge who delivered the opinion of the High Court of Errors and Appeals of Mississippi, in the case of The Natchez Ins. Co. vs. Stanton Buckner & Co., 2 Sm. & Mar. Rep. 340. In that case this question was elaborately considered and decided.  [**55]  An attempt has been made to impugn that decision on the ground that, in some respects, the law of implied warranty therein announced, is contrary to the ruling of the Court of Appeals of this State, in the case in 2 Gill 365. Upon an examination of the cases, however, it will be found that so far as the principle we are now considering is concerned, the cases are not in conflict; and we think the law on this point is clearly and properly laid down in the case of The Natchez Ins. Co. vs. Stanton Buckner & Co., and sustained by the whole current of authorities applicable to the subject.
We have no hesitation in saying, that the delay which occurred in the sailing of the Orb, would amount to a deviation which would discharge the underwriters, unless it proceeded from causes which justify or excuse it. 8 Bing. 317. What the actual causes of the delay were, is a question of fact for the jury. The legal sufficiency of such causes to justify or excuse it, must be decided by the court. 7 H. & J. 291.

 [*380]  If, as the appellants insist, the delay was occasioned by the proceedings instituted in the Admiralty Court of Baltimore, for the recovery [**56]  of debts due for repairs and supplies done and furnished to the vessel, then the delay was not legally justified; or, in other words, the risk of such detention is on the assured, not on the underwriter.
It is laid down in La Guidon de la Mer, "that the underwriter does not run the risk of obstructions occasioned by the debts, insufficient acquittance, or neglect to pay debts of the assured." See 1 Phillips 590. 3 Kent 378. And upon a careful consideration of the question, we are of opinion that this rule applies, whether the policy be on the vessel or on the cargo. This follows from the principles regulating the extent of the risk assumed by the insurer, and inasmuch as the vessel and owners are responsible to the shipper, under the contract of affreightment, for any loss which he may suffer from such delay, it is not reasonable to hold the underwriter bound, without some stipulation in the contract to that effect. It is not covered by the terms in the policy, "restraints and detainments of all kings, princes, or people;" for the construction of those words, see Park on Ins., 78, 79, 80, 81.
On the other hand, if the delay resulted from the difficulty of obtaining [**57]  a crew, and there is evidence in the record to go to the jury tending to prove that fact, then the delay would be excusable, and the underwriters remain answerable. 1 Akyns 545, Motteux vs. London Assur. Co.
Having thus determined the principles which, in our opinion, govern the decision of this case, we shall proceed, in a few words, to dispose of the several prayers presented in the cause, and found in the several bills of exceptions.
The first bill of exceptions contains two prayers on the part of the plaintiff below, and seven on the part of the defendant. The court granted both those of the plaintiff, and rejected all of those offered by the defendant, except the first.
The first prayer on the part of the plaintiff and of the defendant, respectively, were granted without exception, and are not before us for review on this appeal.
The second prayer of the plaintiff ought not to have been 

 [*381]  granted. This follows from what has already been said in the opinion of this court, and it is unnecessary to repeat here the several particulars in which it is erroneous. It withdrew from the jury the consideration of several facts upon the decision of which, in our opinion,  [**58]  the right of the plaintiff to recover depends; and the judgment must therefore be reversed.
The second prayer of the defendant ought to have been granted, the proposition of law therein contained is correct.
With reference to the phraseology of all the other prayers of the defendant, both in the first and second bills of exceptions, we consider it proper to remark, that, in one respect, they are all objectionable. Each of them, after stating certain facts hypothetically as the basis of the legal proposition, contains the words, and if the jury shall find "all other facts assumed by this prayer." Such a clause is unusual in practice, and, we think, objectionable, as tending to mislead the jury. If there are any facts assumed, the prayer would be erroneous; if there are none, then, in any view of them, the words are unnecessary. We are aware of the reason which led the counsel to insert the words, but think they do not accomplish the object designed; and as this is the first time this court has had its attention called to prayers in that form, we deem it proper to say, that in our opinion such a clause forms a substantial objection, and would vitiate a prayer, although in other [**59]  respects unexceptionable. Prayers in this form were before the court in the case of Hopkins vs. Boyd, 11 Md. 107, but no point was made upon their particular phraseology, and it would have had no effect upon the judgment of the court in that case.
The facts upon which the court's instruction is asked, ought to be stated in the prayer, otherwise the legal proposition is vague and indefinite, and the jury ought not to be left to speculate and conjecture what facts are assumed by the prayer, and yet are necessary to be found by them, as the ground of their verdict.
Looking at the defendant's prayers as if the objectionable clause to which we have referred were stricken out, we are of opinion, for the reasons already given in stating the general 

 [*382]  principles governing the case, that the 5th 6th and 8th prayers of the defendant were properly refused. They are based upon the defence set up on the ground of misrepresentation and concealment.
The defendant's fourth prayer was properly rejected, because it treats the statement made by Parker Fall, "that the brig would sail soon," as a promissory representation binding upon the assured, which we have said is [**60]  not its legal effect, or if that be not the true construction of the prayer, it is faulty, because it refers in general terms to the causes of delay "as given in evidence," instead of being limited to those which we have said were not sufficient in law to excuse it. There are causes of delay mentioned in the evidence to which we have before referred, which, in the opinion of the court, would justify and excuse it, provided the jury should find they were the actual causes which detained the vessel, to wit, the difficulty of procuring hands at that time in Baltimore.
The defendant's 3rd and 7th prayers (without the objectionable clause spoken of) should be granted; they are in conformity with the principles which have been stated on the question of deviation. But in the expression of this opinion, we are not to be understood as deciding that the captain of the brig had the power of selling or hypothecating the cargo, or any part of it, for the purpose of paying the debts of the vessel previously existing and contracted without reference to the particular voyage, and unconnected therewith. Such sale or hypothecation, under the circumstances of this case, could only have been made [**61]  by the master, with the consent and authority of the appellee, who was on the spot, and whom it was the duty of the captain to consult. See Abbott on Shipping, 243. But whether such efforts to sell or hypothecate the cargo were made or not, it is sufficient to say, that in the opinion of this court the detention of the vessel by the causes referred to in these prayers, if the jury should find they were the causes of her delay, was a risk of the assured, and not one assumed by the underwriters under the contract.
The second bill of exceptions is taken from the refusal of the court below to grant the defendant's 8th prayer, and we 

 [*383]  have already said that such ruling was correct, for one of the reasons assigned by that court, to wit, "because it was not the law of the case;" and we deem it unnecessary to express any further opinion thereon.
With reference to the question presented by the third bill of exceptions, we deem it sufficient to say, that in conducting trials at nisi prius, many things necessarily depend upon the discretion of the court, and we think the ruling of the Superior Court, to which this exception was taken, was on a matter within its discretion,  [**62]  and that no appeal lies therefrom.
Judgment reversed and procedendo awarded. 

9 of 18 DOCUMENTS 

JOSEPH NUSBAUM and JOHN BOWES, vs. MYER STEIN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 315; 1858 Md. LEXIS 29 

July 20, 1858, Decided 

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

This appeal was taken by the appellants, after answers filed, from an order of the court below (KREBS, J.,) granting an injunction and appointing a receiver, upon a bill filed against them by the appellees. The allegations of the bill are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Granting an injunction is a matter resting in the sound discretion of a court of equity, and such a power should be exercised with extreme caution, and to warrant its action, strong prima facie evidence of the facts on which the complainant's equity rests, must be presented to the court.

Where the claim is on a written instrument in the complainant's possession, it should be exhibited with the bill, or a satisfactory reason assigned for its non-production, and a bill stating the complainant's claim to be founded on promissory notes, none of which are exhibited, and no reason or excuse given therefor, will not warrant the granting of an injunction, though the bill be sworn to.

Where the only claim on which the complainant can ask for an injunction, is a small sum on open account, of which no account is produced verified by affidavit, and the allegations of the bill show the defendant to be possessed of a large sum over and above the mortgages and conveyances attacked by the bill, a preliminary injunction should not be granted to affect the property embraced in such conveyances.

A receiver ought not to be appointed without previous notice of the application given to the defendant, unless the necessity be of the most stringent character. 

COUNSEL:
F. W. Brune for the appellants:

1st. The complainants were not entitled to the appointment of a receiver nor to an injunction, because they are merely general creditors of Nusbaum, and have not prosecuted their claim to judgment and execution, nor in any other manner acquired a lien upon the appellants' property. 10 Md. Rep., 500, Uhl vs. Dillon. 11 Md. Rep., 365, Blondheim vs. Moore. Ibid., 452, Triebert vs. Burgess. 2 Johns. Ch. Rep., 144, Wiggins vs. Armstrong.

2nd. The bill of sale from Nusbaum to Bowes, was executed by the former, and was acknowledged and recorded according to law, and the consideration was sworn to by the latter. Being thus executed and sustained by affidavit, it furnishes at least prima facie evidence that the consideration was just and bona fide, as stated in it. In opposition [**2]  to this, the complainants furnished no proof whatever, except the oath ex-parte of Stein, one of the complainants, which does not positively state the facts sworn to, but only to the best of his knowledge and belief. Such an affidavit, unsupported by any other evidence, is wholly insufficient to counteract the positive statement made in the bill of sale, and the order of the court was, therefore, passed on proof entirely insufficient. Almost the entire claim of the complainants is founded upon promissory notes, none of which are produced, and no excuse given for their non-production; and as to the small balance on open account, even that is unsupported by any affidavit or other proof. That the court, upon such proof, ought not to have granted the injunction, is fully sustained by the case of The Union Bank vs. Poultncy, 8 G. & J., 332. That the allegations of the bill do not make a case authorizing an injunction, and, above all, the appointment of a receiver, see Adams Eq., 487, (n;) 1 Paige, 98, New York Printing Co. vs. Fitch; 9 G. & J., 468, Amelung vs. Seekamp; 4 Gill, 34, Hamilton vs. Ely; 1 Md. Rep., 543, White vs. Flannigain; 2 Green's Ch. Rep., 422, Vanwinkle vs. Curtis; 1 [**3]  Clarke, 336, Rochester vs. Curtiss.

3rd. An additional objection to the exercise of the power exerted by the court in this case, in granting an injunction and appointing a receiver, arises from the fact that the stock of goods thus summarily taken possession of, was in Easton, and the business enjoined there carried on out of the jurisdiction of the court. 5 Sandf., 613, Grant vs. Quick.

Orville Horwitz and Chas. H. Pitts for the appellees:

1st. Under the act of 1835, ch. 380, sec. 2, as construed in the case of Sanderson vs. Stockdale, 11 Md. Rep., 563, it was not necessary for the complainants to have prosecuted their claim to judgment, or to have acquired any lien on the property before proceeding in equity to vacate these conveyances.

2nd. The allegations of the bill make a sufficient case for the interference of the court, by way of injunction and a receiver. It alleges that Bowes was not possessed of any property or means at the time these conveyances were executed; that no consideration was given therefor; and that the deeds were made by the one and accepted by the other without consideration, and with the intent to defraud creditors; that, in effect, there [**4]  was a conspiracy to defraud. These allegations need no other proof than the sufficient oath of the complainants, and, according to the case of Triebert vs. Burgess, 11 Md. Rep., 452, such an affidavit as that in this case, "that the facts stated in the bill are true, according to the best of complainant's knowledge and belief," was held sufficient. There was also sufficient proof of the existence of the claim. But even if the non-production of the notes is an objection, still the bill alleges a portion of the debt to be due upon open account, and this was sufficient to warrant the action of the court, for if any part of the claim authorized the court to issue the order, the fact that there was another part secured by notes, could not deprive the complainants of the rights they had, under the allegation, for the open account debt. The court, then, having the right to interfere for the complainants' protection, how could it be done except by an injunction and a receiver? The goods were distant, and the defendants had no other means to pay our claim, and were about to dispose of the property. This is the very case contemplated in the decision in Triebert vs. Burgess.

3rd. The fact [**5]  that the goods were at Easton, can make no difference. The case cited from 5 Sandford, only says you cannot interfere to stop the action of another court; but here there was no other proceeding at Easton with which this could interfere.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*317]  ECCLESTON, J., delivered the opinion of this court.
The bill in this case was filed in the circuit court for the city of Baltimore, on the 15th of December 1857, by Myer Stein 

 [*318]  and others, complainants, against Joseph Nusbaum and John Bowes, defendants; upon which day the court ordered an injunction and appointed a receiver. From this order, after filing their answers, the defendants appealed.
It is well settled, "that the granting or refusing of injunctions is a matter resting in the sound discretion of a court of equity." 2 Story's Eq., secs. 863, 959, (a.) This learned author, in sec. 959, (b,) maintains the necessity for upholding the authority of the courts to grant injunctions in a variety of cases, for the purposes of social justice. But he then says: "At the same time, it must be admitted that the exercise of [**6]  it is attended with no small danger, both from its summary nature and its liability to abuse. It ought, therefore, to be guarded with extreme caution, and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of extensive, and, perhaps, of irreparable injustice." See the authorities referred to in the note to this section, including a quotation from Mr. Justice Baldwin's decision, in Bonaparte vs. Camden & Amboy Rail Road Co., in which he says: "There is no power, the exercise of which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction." See, also, N. Y. Printing & Dying Establishment vs. Fitch, 1 Paige's Ch. Rep., 98.
In the case of the Union Bank of Maryland vs. Ann Poultney & J. M. Ellicott, 8 G. & J. 324, an appeal was taken from an order granting an injunction. The appellate tribunal held, that the complainants, by their bill, had not shown themselves entitled "to the high and extraordinary power of a court of equity, which had been exerted in their behalf." And that there [**7]  was "no such evidence of their alleged claims as ought to have been produced to satisfy the conscience of a court of chancery of their existence." The bill stated the claims to be certificates of deposit, but they were not produced as exhibits. The court said: "To warrant a court of chancery in issuing an injunction, strong prima facie evidence of the facts on which the complainants' equity rests, must be presented 

 [*319]  to the court, to induce its action. In such a proceeding, the mere oath of the party as to the existence of a debt, of which he holds in his possession the written evidence, and makes no exhibition thereof, should not be regarded by the chancellor as any proof of the debt. Where the existence of the debt depends on a written instrument, whereof the complainant is presumed to be possessed, it should be exhibited with the bill, or a satisfactory reason assigned for its nonproduction."
In the present case, the complainants allege Nusbaum to be indebted to them in the sum of $ 2045.12, of which $ 134.02 is charged as being due on open account, for merchandize sold and delivered to him, and the balance is stated to be due on four promissory notes; but not one [**8]  of them has been exhibited, nor has any reason or excuse been assigned for such failure to produce them. And, according to the doctrine held in the case last referred to, these notes cannot be regarded as any proof of indebtedness on the part of Nusbaum. They must, therefore, be considered as if they were not before us; thus leaving the complainants with no further claim than that of $ 134.02, on open account, on which they can base any title to an injunction.
The bill states, that on the 28th of October 1857, Nusbaum was the owner of, and carried on, four stores, one in the city of Baltimore, one in Norfolk in the State of Virginia, one in the State of Ohio, and one in the town of Easton in Talbot county in Maryland. That the goods and merchandize then in said stores were worth, in the aggregate, about $ 20,000. That on the 5th of November 1857, the said Nusbaum conveyed, by way of mortgage, to A. Brown Davidson, to secure to him the payment of $ 5396.72, his, the said Nusbaum's, stock of goods in the city of Baltimore, and, on the 21st day of the same month, (November,) Nusbaum conveyed, by way of mortgage, the same stock of goods to Orem & Hopkins, to secure to them the payment [**9]  of the sum of $ 2567.25, as appears by copies of said mortgages filed as exhibits. That on the said 5th of November, Nusbaum conveyed and transferred to said Davidson all his, Nusbaum's, stock of goods in the 

 [*320]  the State of Ohio, as a further security for his debt to Davidson. That the conveyances to Davidson, and Orem & Hopkins, the complainants do not mean to impeach in this suit, but refer to them as necessary to a full disclosure of their case. The bill further states, that on the 10th of November 1857, Nusbaum received from Moses Herz and J. K. Hubard, of Norfolk, in Virginia, a conveyance of a stock of goods then contained in store No. 14, in the said town of Norfolk, to secure to said Nusbaum the payment to him of the sum of $ 3970.50, as appears by a copy of said conveyance filed and marked C, which stock of goods is one of the four before mentioned, the same having been previously sold by Nusbaum to Herz. The complainants also allege, that on the 13th of November 1857, the said Nusbaum conveyed, by way of mortgage, all his stock of goods in the town of Easton, aforesaid, to John Bowes, of the city of Baltimore, to secure a pretended indebtedness by said Nusbaum to [**10]  said Bowes, of $ 3100, and on the 16th day of said month of November, Nusbaum, by absolute bill of sale, conveyed to the said Bowes, in satisfaction of another pretended indebtedness to him of $ 2950, all his, the said Nusbaum's interest in the stock of goods which had been conveyed to him, as aforesaid, by Herz & Hubard, as appears by a copy of said conveyance from Nusbaum to Bowes, filed and marked D. The two conveyances to Bowes the complainants say they believe and charge were made by Nusbaum and accepted by Bowes without consideration and fraudulently, and for the purpose of hindering, and delaying, and defrauding the complainants, who were at the date of said deeds, and still are, creditors of the said Nusbaum. The bill also alleges, that Nusbaum "has no property or assets of any kind, other than that which he has conveyed and mortgaged, as hereinbefore stated."
The complainants pray that the two deeds or conveyances to Bowes may be declared void. And in regard to the stock of goods included in the first of them, the further prayer of the bill is, that a writ of injunction might be issued, and a receiver appointed; which last mentioned prayer the court granted.

 [*321]   [**11]  The question before us, it will be seen, is not whether, upon final hearing, the first conveyance to Bowes should be declared void, and perpetually enjoined, or whether, after the filing of an answer, and upon a motion to dissolve the injunction, the motion should or should not prevail, but it is whether, upon the case made by the bill, a preliminary injunction should have been issued, and a receiver appointed? To such a question, in view of the caution and sound discretion proper to be exercised, we must say we think the circumstances disclosed by the bill did not justify the order passed by the court, from which this appeal is taken.
We have said the promissory notes claimed by the complainants to be due them, are not evidence in support of the injunction. Their only claim, therefore, requiring examination, is that stated in the bill to be $ 134.02, on open account; the proof of which rests alone upon the affidavit of one of the complainants, swearing to the truth of the statements and averments of the bill. No account is produced, verified or sustained, either in the whole or in part, by the oath of a clerk, which species of proof it cannot be very difficult to furnish in [**12]  a regular city mercantile establishment. And when the propriety of granting the injunction is based upon a claim having no more proof than is here given, it is a circumstance not to be entirely disregarded, that Bowes, the mortgagee, whose rights are to be seriously affected by the injunction, has made oath that the consideration in the mortgage "is true and bona fide, as therein set forth."
The statement in the bill is, that on the 28th of October 1857, Nusbaum was the owner of, and carried on, the four stores which have been mentioned, and that the goods and merchandize then in those stores were worth, in the aggregate, about $ 20,000. Now, excluding the four promissory notes claimed by the appellees, if their open account and all the mortgages mentioned in the bill, and also the consideration for the absolute bill of sale to Bowes, are all added together, they will amount to the aggregate sum of $ 14,148.09. Deduct this from the $ 20,000, and there will remain a balance of assets, belonging to Nusbaum, amounting to $ 5841.91. The 

 [*322]  four promissory notes amount to $ 1911.10. If this should be taken from the above stated balance, there would still be $ 3940.81 of Nusbaum's [**13]  assets, after allowing every claim against him, mentioned in the bill.
In Triebert vs. Burgess, et al., 11 Md. 452, an order appointing a receiver was reversed, because previous notice to the defendants had not been given. The day on which the present bill was filed, the receiver was appointed, no previous notice of the application having been given to the defendants; for which reason there will be a reversal of the appointment. And believing the bill does not make a proper case for an injunction, the order of the 15th of December 1857, granting the same, must be reversed.
Order reversed and cause remanded. 

10 of 18 DOCUMENTS 

THE BALTIMORE AND OHIO RAIL ROAD COMPANY, vs. WILLIAM LAMBORN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 257; 1858 Md. LEXIS 23 

July 20, 1858, Decided 

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

Trespass on the case, brought by the appellee against the appellant, to recover the value of a horse belonging to the plaintiff, killed by the locomotive of the defendant. Plea non cul.

Exception. The facts of the case, as given in evidence, are fully stated in the opinion of this court. The defendant asked four instructions, in substance as follows:

1st. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant, under charge of its agents, and that the horse was on the track of the rail road through any negligence on the part of the plaintiff to keep the horse within his close, the plaintiff is not entitled to recover.

2nd. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant under the management and control of its agents, and that, at the time of such injury, the horse had strayed upon the track of the rail road through the want of fences which the plaintiff was bound to erect, the plaintiff is not entitled to recover, though, at the immediate time of the injury being done, the defendant was guilty of [**2]  actual negligence.

3rd. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant, under the management and control of its agents, and that the horse had strayed upon the track of the rail road through any defect in the fences or enclosures of the plaintiff, then the plaintiff is not entitled to recover.

4th. If the jury believe from the evidence, that the plaintiff's horse was killed on the rail road, by being run over by a locomotive under the control and management of the defendant's agents, and that the horse was upon the track of the rail road without any fault or negligence of the defendant, then the plaintiff is not entitled to recover, he being bound to keep the horse upon his premises and within his enclosures.

These instructions the court, (BREWER, J.,) refused to give, and to this ruling the defendant excepted, and the verdict and judgment being in favor of the plaintiff, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

At common law a plaintiff cannot recover for injuries to which his own fault or negligence directly contributed, and this principle is not changed by the acts of 1838, ch. 244, and 1846, ch. 346, in relation to the liability of rail road companies in this State, for injuries to cattle and stock on their roads.

Under these acts, rail road companies are bound to show that the damage was the result of inevitable accident only in cases where the party complaining has not contributed in any manner, by his own negligence or violation of law, to the injury complained of.

The owner of cattle is bound to keep them in an enclosure or in custody at his peril, for every entry by them on another's possession is a trespass, and this principle applies as well to the intrusion of cattle and horses, upon the land over which a rail road company is entitled to its franchise as to the property of a private owner.

The acts of 1838, ch. 244, and 1846, ch. 346, give a right of action to the owner of stock, killed or injured on a railway, only when such stock is on the railway without any fault on the part of the plaintiff. 

COUNSEL:
Thomas Donaldson for the appellant:

1st. The injury complained of would not have happened, but for the negligence of the plaintiff in permitting his horse to stray at large [**3]  in the neighborhood of the rail road. The well settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault directly contributed, is not abrogated or even modified by the acts of 1838, ch. 244, and 1846, ch. 346. The sole effect of these acts, is to throw upon the defendant the burden of proof in regard to the absence of negligence on his part, leaving the question of the effect of the negligence of the plaintiff, exactly as it stood under the common law. 4 Md. Rep., 242, Balto. & Susq. Rail Road Co., vs. Woodruff. 14 Barb., 364, Marsh vs. New York & Erie Rail Road Co. 3 Kernan, 42, Corwin vs. New York & Erie Rail Road Co. 13 Georgia, 68, Macon & Western Rail Road Co., vs. Davis. Any other construction of these acts would not only be unreasonable, and would subject rail road companies to the grossest imposition, and the travelling community to imminent hazards, but would be an invasion of constitutional rights.

2nd. Every owner of cattle is bound to keep them within his own close; if they stray upon the rail road they are trespassers, and the owner is himself the cause of any injury suffered in consequence. The acts of Assembly [**4]  referred to cannot reasonably be so construed as to give a right of action, except in cases where the cattle are rightfully crossing the track as when driven on a highway. 4 Exch. Rep., 580, Sharrod vs. London & North- Western Railway Co. 5 Denio, 255, Tonawanda Rail Road Co., vs. Munger. 11 Barb., 112, Clark vs. Syracuse & Utica Rail Road Co. 19 Penn. State Rep., 298, Rail Road Co., vs. Skinner. 1 Foster, 363, Towns vs. Cheshire Rail Road Co. 2 Zabriskie, 185, Vandegrift vs. Rediker. 2 Mich., 259, Williams vs. Michigan Central Rail Road Co. 6 Barr., 472, Knight vs. Abert.

3rd. It is gross negligence for the owner of cattle, to suffer them to go at large in the vicinity of a rail road. 14 Barb., 364. 13 Barb., 497, Talmadge vs. Renssalaer & Saratoga Rail Road Co.

Wm. H. G. Dorsey for the appellee:

There is no evidence in the record of any negligence on the part of the plaintiff, and under the acts of 1838, ch. 244, and 1846, ch. 346, the plaintiff was entitled to recover, unless the defendant could show the injury to the horse to be the result of unavoidable accident.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*259]   [**5]  BARTOL, J., delivered the opinion of this court.
This is an action to recover the value of a horse, belonging to the appellee, killed by the locomotive of the appellant.
At the trial of the cause, the plaintiff, to maintain the issue on his part, proved that some time in the month of September 1855, he was the owner and proprietor of certain land adjoining and contiguous to the Washington branch of the Baltimore 

 [*260]  and Ohio Rail Road, at or near the Hanover switch, where the cars of the defendant stop, when necessary, to put off or take up passengers, and that he was also the owner of a horse which, at the time referred to, was standing at or near the point indicated, on the line of the said rail road, though not immediately in the track, and which was run over by the cars of the said defendant, and so injured as to be entirely lost to the said plaintiff.
The defendants, then, for the purpose of maintaining the issue joined on their part, proved that on the occasion of the injury to the horse of the plaintiff, a locomotive, with a train of passenger cars attached, in charge of their agents, was proceeding from Baltimore to Washington, at a rate of speed of about twenty-five [**6]  miles an hour, that on approaching the switch they gave the usual and ordinary signal, with the whistle; that when within a short distance of said Hanover switch, they observed the horse of the plaintiff, distant some hundred and fifty yards, standing near the rail road track, and on or near a road which crosses said track; that immediately upon observing the horse, the whistle was sounded to put down the brakes, and the brakes were put down instantly; that the horse immediately took to the track of the rail road, and run some distance in the road, when he was overtaken by the cars and run over; that at the time of the collision, the speed of the cars had been reduced to some ten miles the hour. It was further proved, that if the agents having charge of the cars, had, at the time of the discovery of the horse, when they were going at the rate of twenty-five miles an hour, reversed the engine, it would have been at the peril of the entire train and passengers, as, in all probability, it would have thrown the cars from the track.
The plaintiff then proved, upon cross-examination, that the point where the horse was first seen, was a point on the rail road which, from the curve in the [**7]  road, could not be seen at a greater distance than a hundred and fifty yards, and that carts and wagons are frequently passing said rail road during loading and unloading iron ore, to be transported over said rail road; and that it would have been impossible to arrest the 

 [*261]  cars, going at the rate at which they were travelling, when they first discovered the horse, sufficiently to avoid the collision.
Whereupon the defendant offered four prayers, which were rejected by the court below, and the verdict and judgment being in favor of the plaintiff the defendant appealed.
In all the prayers the principle is involved, that if the horse, when killed, was upon the track of the rail road, through the negligence of the plaintiff in not keeping the horse within his close, then he is not entitled to recover.
It is a principle of the common law, too well settled to require authorities to be adduced in its support, that, in an ordinary case, a plaintiff is not entitled to recover for injuries to which his own fault or negligence directly contributed; but it is contended by the appellee's counsel, that this case is freed from the operation of that principle, by force of the provisions [**8]  of the acts of Asembly of 1838, ch. 244, and 1846, ch. 346.
The former of these acts was carefully considered, and its construction settled by this court, in the case of The Baltimore & Susquehanna Rail Road Co., vs. Woodruff, 4 Md. 242.
It was then decided that "the act simply changes" the rule of evidence, by releasing the plaintiff from proving negligence, if the fact of the injury is established, and casts the onus upon the defendant of showing there was no negligence" on its part. In other respects, the rights of the parties and their liabilities at the common law, remained unchanged by the act of 1838.
The act of 1846, ch. 346, while it leaves the onus of proof where the act of 1838, had placed it, on the defendant, requires that the rail road company shall, in order to exempt itself from responsibility, prove "that the damage or injury sustained, was the result of unavoidable accident."
This court, in construing the act of 1838, said, that it restored the common law rule in relation to negligence, and imposed on the company the duty of showing the exercise of reasonable care and caution; See 4 Md. 256. The language of [**9]  the act of 1846 is somewhat different, and must be construed as imposing on the company the highest degree of care and caution; by its terms nothing can exempt the company, but to show that the damage complained of was the result of unavoidable accident.

 [*262]  But, in our opinion, this applies only to those cases where the party complaining has not contributed in any manner by his own negligence or violation of law to the act complained of. Or in other words, the rule of the common law to which we have adverted, remains unchanged by the acts of Assembly to which we have referred. And we concur in the views taken by the appellant in his argument, that any other construction of these acts, would subject rail road companies to the greatest imposition and expose the lives of passengers to the most constant and imminent peril. In the language of Chief Justice Gibson, in 19 Pa. 302, "A rail road company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of it, and of a license to use the greatest attainable rate of speed, with which neither the person nor the property [**10]  of another may interfere. The company on the one hand, and the people of the vicinage on the other, attend respectively to their particular concerns, with this restriction of their acts, that no needless damage be done. But the conductor of a train is not bound to attend to the uncertain movements of those loitering or roving cattle by which our railways are infested. Any other rule would put a stop to the advantages of railway travelling altogether." To the same effect see Clark vs. Syracuse & Utica Rail Road Co., 11 Barbour 112. Marsh vs. The New York & Erie Rail Road Co., 14 Barbour 364, and the other cases cited by the appellant in the argument.
"By the common law, an owner of cattle is bound to keep them in an inclosure or in custody at his peril, for every entry by them on another's possession is a trespass," and this is the law of Maryland, and applies as well to the intrusion of cattle and horses upon the land over which a rail road company is entitled to its franchise as to the property of a private owner. And the construction which we put upon the acts of Assembly of 1838 and 1846, is, that they give a right of action, only where [**11]  the cattle, horses, &c., of the plaintiff, are on the railway, without any fault on his part. And the question of the negligence or fault of the plaintiff, in the case before us, was a 

 [*263]  proper subject to be passed upon by the jury. That question was properly presented by the several prayers of the defendant, and the circuit court erred in rejecting them.
Judgment reversed and procedendo awarded. 

11 of 18 DOCUMENTS 

JOHN J. HECKART vs. DANIEL H. MCPHAIL, Lottery Commissioner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 96; 1858 Md. LEXIS 9 

June 14, 1858, Decided 

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

This was an application, made by the appellant, for a rule upon the appellee to show cause why a mandamus should not issue, commanding him, as State Lottery Commissioner, to issue his draft on the Lottery Contractor for payment of a balance of $ 546.29, on the semi-annual instalments, due the petitioner, under a certain decree of Baltimore County Court.

The petition states that, by the act of 1839, ch. 234, certain commissioners therein named were authorised to raise, by a lottery, "the sum of $ 30,000, free and clear of all charges and interest whatsoever," for the purpose of building, by contract, an outlet lock on the Tide Water Canal, opposite Port Deposit; that subsequently, by the act of 1842, ch. 74, this lottery was consolidated with the State lotteries, and made subject to the legal provisions attached to them; that in January 1847, the commissioners named in the act of 1839, contracted with certain parties for the building of this lock, and agreed to assign to them, therefor, all the money arising from this lottery; that the lock was duly built, according to contract, and the contractors assigned their interest in [**2]  the lottery to Wilmer, Heckart and Tome, one-fourth each to the first two, and one-half to the last named; that, subsequently, these assignees applied to the then State Lottery Commissioners for the proper amounts due them under the distribution adopted under the lottery system, but the commissioners refused to recognize them as assignees, until some legal proceedings were taken to make a proper transfer of this lottery grant to them, and a direction from a proper court to the commissioners, ordering payment of the sum ascertained to be due them; that thereupon Wilmer, Heckart and Tome filed their bill on the equity side of the Superior Court of Baltimore city, in December 1851, against the commissioners named in the act of 1839, and a decree (a copy of which is filed with the petition) was therein passed by the court, on the 30th of December 1851, directing the defendants to transfer to the complainants this lottery grant, and "that the said complainants be entitled to receive from the State Lottery Commissioners, and their successors, such sum, semi-annually, as amounts to the proportion of said lottery grant, out of the proceeds of the State lotteries, until the said complainants [**3]  receive the sum of $ 15,034.92, being the residue of the $ 30,000, authorized by said act of 1839, ch. 234, to be raised, after deducting what has been paid to the said defendants, over and above their expenses," and that this sum be paid to the complainants in the proportion of one-half to Tome, and one-fourth each to Wilmer and Heckart. The petition further states, that after the passage of this decree, a copy thereof was filed with the State Lottery Commissioners, and recorded upon their official books, and assignments made under it, with their concurrence and approval; that the State Lottery Commissioners were succeeded by the State Lottery Commissioner elected under sec. 7, art. 4, of the present constitution of the State, and this officer, under the direction of the 5th section of the same article, in relation to making such contract or contracts as would extinguish all existing lottery grants before the 1st of April 1859, and under the direct authority contained in the act of 1852, ch. 113, made a contract with R. France, providing therein for the payment, on the draft of the Lottery Commissioner, to the persons or bodies politic or corporate, in equal semi-annual instalments,  [**4]  of the sum to be distributed amongst the existing lottery grants, during the term of such contract; that after making this contract, the State Lottery Commissioner made certain distributions under the lottery created by the act of 1839, but not in the proportions according to the aforesaid decree, nor of the constitution and law, and not in such equal semi-annual instalments as will pay the holders thereof the sum decreed by the court to be paid to them within the time prescribed by the constitution; that the sum allowed and ascertained to be due by the decree, was $ 15,034.22, and that prior to the first distribution, under the new contract, there had been distributed the sum of $ 1063.82, leaving due, October 1st, 1852, the sum of $ 13,430.38, to extinguish which, prior to April 1st, 1859, would require semiannual distributions of $ 959.31 1/4, commencing on the 1st of October 1852; that, instead of distributing this amount, the commissioner has made semi-annual distributions of $ 716.45, which, in the aggregate, amounted, on the 1st of October 1856, to $ 6448.65, instead of $ 8633.82, leaving a balance due the holders, on that day, of $ 2185.17, of which $ 546.29 is due the petitioner;  [**5]  that this $ 6448.65 was received under protest by the petitioner, and he charges that he has again and again demanded of the State Lottery Commissioners, severally elected under the constitution, his proper drafts upon the contractor aforesaid, and has demanded of them a draft for the balance due him on the distributions already made, and has demanded of the present Lottery Commissioner a draft for the sum of $ 546.29, being the amount still due him on the proper semi-annual payments, but that each of these demands has been refused, and that he is remediless in the premises, except by a writ of mandamus.

The rule was laid, and the appellee showed cause. He admits the grant made by the act of 1839, and its union with the consolidated lotteries, by the act of 1842, so as to give it the benefit of the receipts, on account of those lotteries beginning with the fiscal year which commenced 1st of December 1843. That the amount then entered on the books of the commissioners, as to be raised, was $ 30,000, and no more, being the sum mentioned in the act of 1839. That it does not appear, from the records of the State Commissioners of Lotteries, that they were ever notified by the commissioners [**6]  named in the grant, or any one for them, while they remained in possession of it, or by any of the assignees, after their title accrued, that any charges or interest had been paid or incurred on account of the grant, so as to make it necessary to raise any sum for such charges and interest, over and above the $ 30,000. That the commissioners of the grant never attempted to sell tickets or draw schemes, and incurred no expense or responsibility on account of the grant, before its consolidation, and that no claims for any charges or interest were ever notified to the State Commissioners, and no demand has ever been made on any of them to raise any sums on such account, over and above the $ 30,000. That, on the contrary, the first payment made on the grant, in July 1844, was calculated on the basis of $ 30,000, and that all the payments since, have been made on the same basis. That in 1852, the then Lottery Commissioner, (Stewart,) pursuant to the provisions of the new constitution, made a contract for the extinguishment of the then existing grants, and fixed and ascertained the amount to be raised on this grant at the sum of $ 10,030.40, payable in equal semi-annual instalments of $  [**7]  716.45 5/7, on the 1st of April and October, in each year, beginning with the 1st of October 1852, and that the basis assumed by him, was the same which had been assumed by all his predecessors, viz: the sum of $ 30,000, and that no claim was at any time made upon Stewart for the raising of any additional sum as interest or charges. That as early as October 1852, the assignees of the grant, and among them the petitioner, were notified of the sum so ascertained and settled by Commissioner Stewart, and when so notified, and the petitioner and the other assignees recognized the correctness of the ascertainment by receiving the sums payable accordingly. That on the 1st of October 1853, the commissioner drew on the contractor for $ 716.45, in three drafts, one of which, for a fourth thereof, was so drawn in favor of the petitioner, and paid by the contractor on the endorsement thereof by the petitioner. That the same thing was twice repeated in 1853, twice in 1854, twice in 1855, and twice in 1856, in regard to the petitioner and the other assignees, each receiving and endorsing his separate drafts. That the petitioner did not object till in the term of the commissioner who went into office [**8]  in 1854, and that another of the assignees did not object till 1856, and that the third (who owns half the grant) has never objected. That the State Commissioner never asked of the commissioners of this grant, or their assignees, anything more than what is contained in two letters addressed to them in December 1851, which show that the State officers merely requested a proper assignment to be executed from the commissioners named in the grant to their assignees. That in January 1852, a copy of the decree mentioned in the petition was recorded in the office of the Commissioner of Lotteries, with an assignment thereon by Tome to Vandiver, and he files a full record of the proceedings in the case in which the decree was passed. That this decree, if binding at all, is binding only on the parties to it, and does not conclude respondent, or the interests he represents. That upon the face of the proceedings, as well as otherwise, the decree is erroneous and irregular, and is of no force or validity whatsoever, for the purpose for which it is relied on, of settling the amount payable on said grant by the State Commissioners, and that it has never been recognized for any such purpose by any [**9]  of said commissioners. He further pleads that the remedy sought is not appropriate, and that the contractor, France, ought to be a party to any proceedings in which his interests are so involved as in the claim now set up.

The record of the case in which the decree relied on was passed, shows that the complainants in it are Wilmer, Heckart (the petitioner) and Tome, and the defendants, Smith, Roman and Anderson, commissioners named in the act of 1839. The complainants there allege, among other things, that since the consolidation of said lottery grant with the State lotteries, the commissioners named in said grant have received, in virtue thereof, the sum of $ 18,368.78, and have expended, in and about the execution of the said lottery grant, and in the performance of their duties as commissioners, the sum of $ 3400, leaving a net sum, over and above expenses, amounting to $ 14,968.78, which they have paid over to the complainants, and that there is still due and accruing to them the sum of $ 15,034.22, which is to be raised by the State Lottery Commissioners. The answer of the defendants, which was accepted without oath, admits the allegations of the bill, and consents to a decree [**10]  which was passed on the same day the bill was filed, (20th December 1851,) and is worded as set forth in the petition.

The court (LEE, J.,) refused the application and discharged the rule, and from this decision the petitioner appealed.  

DISPOSITION:
Judgment reversed, writ ordered, and procedendo awarded.  

HEADNOTES:

By the act of 1839, ch. 234, certain commissioners were authorized to raise, by lottery, for a specified purpose, "the sum of $ 30,000, free and clear of all charges and interest whatsoever," and this grant was afterwards consolidated with the State lotteries, by the act of 1842, ch. 74, which directed the State Lottery Commissioners to draw the lottery, and pay over to the commissioners named in the grant, the money authorized to be raised. HELD:

That the special commissioners named in the act of 1839, were the proper parties to ascertain the amount of expenses and interest incurred, and a decree of a court of competent jurisdiction, in a case in which such commissioners were defendants, and the assignees of the grant complainants, ascertaining the sum due on a basis making an allowance for expenses, entered upon the books of the State Lottery Commissioners, is binding upon them and their successors, unless obtained by collusion or fraud.  

COUNSEL:
Wm. P. Whyte for the appellant:

The act of 1839, expressly required $ 30,000 to be raised, exclusive of all charges and interest; that is, $ 30,000 were to be actually paid for building the lock. It matters not what the answer alleges in relation to the entry on their books, in 1844, by the Lottery Commissioners, that the sum of $ 30,000, and no more, was to be raised, because at that period no charge whatever could have accrued against the grant, inasmuch as no contract was made for building the lock till 1847, and, of course, the payments made to the commissioners named in the grant, were merely on account, and as there was then no limit to the period during which lotteries could be drawn in the State, any deficiency could be made up afterwards. The act of 1839 contemplates the payment of charges and interest exclusive of the $ 30,000. The contractors for building the lock had [**11]  to look to the commissioners named in the act for the fulfilment of the terms of the contract, which was to transfer to them the $ 30,000, free of all charges, of which charges those commissioners were the sole judges, and to get a proper assignment of the grant, the decree relied on was obtained from a court of competent jurisdiction, between proper parties, and adopted, sanctioned and enrolled upon the records of the State Lottery Commissioner's office. This decree cannot be questioned in this proceeding, but is final and conclusive of the question adjudicated, and cannot be impeached on the ground of informality in the proceedings, or error or mistake of the court in the matter adjudicated. 2 H. & G., 50, Raborg vs. Hammond. 3 Md. Rep., 54, Ranoul vs. Griffie. 9 Gill, 222, Powles vs. Dilley. 1 Greenlf. on Ev., sec. 551. If the decree was not correct, it should not have been adopted and recorded as a valid assignment, and before the new contract was made, it was before the commissioner to guide him in his estimate of the amount to be raised before April 1st, 1859. The new contract does not call for the payment of any specific sum, but to pay all sums authorized to be raised by the [**12]  lottery grants, that they might be wholly paid off. Such was the express direction of the constitution, and the act of 1852, ch. 113. The objection, that the parties to the suit are the only persons bound by the decree, is not tenable, for, in the case of a suit on a trustee's bond, the defendant cannot question the correctness of the original decree for a sale, nor the order distributing the purchase money. 2 Gill, 439, Richardson vs. State, use of Rawlings. The State Lottery Commissioner held a similar position to the appellant. But if the decree were not conclusive, and the question of charges could be investigated, who are to be the judges of the charges, save the commissioners under the act of 1839. They gave bond for the performance of the duties; they made the contract for building the lock; they superintended its construction, and they are entitled to charges. Whatever may be the policy of other States, it is the settled policy of this to pay all agents employed in the public service. The State Lottery Commissioner is paid for drawing the lotteries. The Visitors of the Penitentiary are paid. The Commissioners of Public Works are paid. Laws are passed, during each session of [**13]  the Legislature, paying persons for special services to the State. The case in Delaware, of State vs. Platt, 4 Harrington, 163, is not applicable to this, as the parties deducting "expenses" there were the Trustees of the College, and had parted with possession of the entire grant, and they had no duties to perform.

J. Mason Campbell for the appellee:

The unexhausted amount of the grant claimed by the petitioner, was rightly fixed, by Commissioner Stewart, at $ 10,030.40. The original sum to be raised was $ 30,000, free and clear of all charges and interest whatsoever. Neither the commissioners of the grant, nor its assignees, nor any one, ever has made any claim to the raising of any sum for interest or charges, nor does the petition in this case disclose that there were charges incurred or interest paid. The sum of $ 30,000, then, which has been exclusively adopted, and, till within a short period, assented to by all parties as the sum to be raised, is all that the present petitioner can claim. The very decree itself, on which he relies, expressly affirms the same thing, and describes the grant as one for "$ 30,000, authorized by the act of 1839, ch. 234, to be raised.  [**14]  " This sum being settled, the only question is, what portion of it had been raised when Commissioner Stewart made the contract, under the new constitution, to raise the residue? The full record filed by the defendant, of the proceedings in the cause in which the decree was passed, ascertains this by the admission of the petitioner himself, he being one of the complainants in that cause. That bill states the sum raised and paid to the commissioners of the grant, before the assignment made by them, at $ 18,368.78, and the present petition sets out the amount paid, after the assignment and before the new contract, at $ 1603.83, making $ 19,972.62, which, deducted from $ 30,000, leaves $ 1027.40 as all that remained to be raised, which is $ 3 less than the amount fixed by Commissioner Stewart. Nor is it any answer to this simple and conclusive statement, that the bill which admits the payments prior to the assignment, claims also that there was paid away $ 3400 of that amount, so as to leave a net receipt, on that hypothesis, of only $ 14,968.78. It is not stated for what the $ 3400 was expended, nor is there any proof in the record on that point. That bill was filed by the parties entitled [**15]  to an assignment of the grant, the present petitioner being one of them, against the commissioners of the grant, for an assignment of it. There was no reason for any such proceeding. The commissioners were willing to assign, and could have assigned, without any decree. The bill, as filed, was admitted without oath or proof, and a decree passed. The State Lottery Commissioners were no parties to the proceeding, and it is of no force as against any one but the parties to it. The decree itself, however, by a strange oversight of the parties, makes a statement fatal to the claim which it was possibly the object of these strange proceedings to accomplish, for it denies any right to raise more than $ 30,000. But, again, the acquiescence of the assignees in the amount settled by the Lottery Commissioner, is not only itself conclusive testimony to the correctness of the ascertainment, but also a bar to the present proceeding.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*104]  LE GRAND, C. J., delivered the opinion of this court.
This is an application for a mandamus. Whether or not it should issue, depends, in our judgment, upon [**16]  the construction which ought to be placed upon certain acts of Assembly.
The act of 1839, ch. 234, (after an allusion to a previous act,) in its first section, provides, that for the purpose of building an out-let lock at Bell's ferry, opposite Port Deposit, on the Susquehanna canal, certain named persons were appointed commissioners, "with full power and authority, by a scheme or schemes of lottery, and the sales thereof, or of the tickets 

 [*105]  therein, and without being subject to any tax whatsoever, to raise the sum of $ 30,000, free and clear of all charges and interest whatsoever."
By the act of 1842, ch. 74, the grant of the act of 1839 was consolidated with the State lotteries. This act directed the Commissioners of Lotteries to pay to the commissioners named in the original act, or appointed in pursuance thereof, a ratable proportion, semi-annually, of the sum authorized by the original act.
The act of 1852, ch. 113, gives to the Lottery Commissioner, under the present constitution of the State, the power of the commissioners under previous legislation, and by its fourth section provides, "that the Commissioner [**17]  of Lotteries, on the maturity of each instalment for distribution, shall divide and distribute the same, pro rata, amongst the persons and bodies corporate or politic entitled to receive the same."
The petition alleges, that in the year 1847, the commissioners mentioned in the act of 1839, contracted with certain parties for building the lock, and all moneys arising from the lottery authorized by the act of 1839; that the lock was duly built and completed, according to contract, and the contractors assigned their interest in and to said lottery grant to certain persons, in certain proportions, and that among these assignees is the appellant, with interest in the proportion set out in his application for the mandamus; that the Lottery Commissioners refused to recognize the assignees until some legal proceedings were taken to make a proper transfer of said lottery grant to the assignees, and a direction from a proper court to the commissioners, ordering the payment of the sum ascertained to be due to them. The petition then avers, that because of this refusal of the Lottery Commissioners, a proceeding was had in the Superior Court of Baltimore city, whereby it [**18]  was decreed that the complainants "be entitled to receive from the State Lottery Commissioners, and their successors, such sum, semi-annually, as amounts to the proportion of said lottery grant, out of the proceeds of the State lotteries, until the said complainants receive the sum of fifteen thousand dollars and ninety-two cents, being the residue of the thirty thousand dollars 

 [*106]  authorized by said act of 1839, ch. 234, to be raised, after deducting what has been paid to the said defendants, over and above their expenses."
To this petition the defendant, admitting the passage of the several acts of Assembly, proceeds to give his opinion of the legal effect of certain acts, both of commissioners under the old constitution and those who were named in the legislation in relation to the grant for the lock, and also of the contractors and assignees. He avers that his predecessor did not recognize the obligation to raise, under the grant, more than thirty thousand dollars, and that, with this understanding of his duty, he made semi-annual distributions on this basis.
At the time the decree was passed, Messrs. Wharton and Dickenson were the commissioners. On the adoption [**19]  of the new constitution, they were succeeded by Mr. Stewart, and he by Mr. Roberts, and Mr. Roberts by the present appellee. From this statement, it must be apparent the appellee, as Lottery Commissioner, has no personal knowledge of the earlier circumstances attending the grant; his knowledge, as such, is only derivable from his experience since he became commissioner, and from what the records of the commissioners who preceded him disclose. His own personal knowledge, as such, only evidences the fact that the appellant received a sum on a basis which excluded "expenses" as ascertained by the decree, and did so under protest. His construction of the legal operation of the acts of the Superior Court, and of those of the commissioners under the old constitution, can have no influence, because they are matters of law, and not of fact.
On this state of case, the question is, ought the writ to issue? We are of opinion it should. It must be recollected, that under the act of 1839, (the one authorizing this grant,) the commissioner therein named and authorized by it to be appointed, so far as this particular grant is concerned, had as much power as had the State Lottery Commissioners [**20]  over grants placed, by other acts of Assembly, under their direction, and subject to their control. So far as this grant was concerned, the act of 1839 was, pro tanto, a repeal of the authority conferred on the State Lottery Commissioners; and what 

 [*107]  the latter could do in regard to grants placed under their jurisdiction, the act of 1839 authorized its commissioners to do in reference to the particular grant. They were empowered to raise, for the specified purpose, $ 30,000, "free and clear of all charges and interest whatsoever." This was their power. Now, who was to determine whether $ 30,000 was raised, "free and clear of all charges," &c? Certainly themselves, and none others. If this be not so, then by what authority did the Lottery Commissioners determine? If one set had not the power, then the other had not, for the power over the particular cases is the same, and derived from the same source, namely, acts of Assembly. Of course we allude to cases free from fraud, for in such cases the ascertainment, as in all other cases, when proved, would not avail against parties in interest. But there is no fraud alleged in the case at bar, the defence being,  [**21]  simply, that the decree of the Superior Court is not binding, and that there is no proof of any expenses beyond the $ 30,000 authorized to be raised. If the decree be binding, then this objection is of no force, because the decree concludes the party from availing himself of it in this proceeding. We are clearly of the opinion that the decree and the entry of it with the assignment on the books of the Lottery Commissioners, did conclude them, because the court passing the decree was one of competent jurisdiction, and because the parties to it were the only parties whose interest, in the then posture of affairs, was involved. The contractor not being nominally a party to this proceeding, whatever position he may, in reality, occupy toward it, we abstain from comment on the terms of his contract. We are to be understood as saying nothing in this opinion as concluding any rights he may have under his contract.
By the act of 1839, the State empowered certain enumerated persons to perform and fulfill a trust; the object to be accomplished (viz: the construction of the lock) was to be accomplished under their supervision and direction; and the expenses to be incurred, and the interest to [**22]  be paid, were to be ascertained and paid by them. Their appointment by the Legislature entitles them to an exemption from the charge of 

 [*108]  having abused their powers, unless such a charge be supported by proof. In the absence of all evidence to the contrary, the presumption must be, that they have ascertained the amount of interest and expenses correctly. Besides, under the act of 1842, ch. 74, sec. 2, they were compelled to give bond for the faithful discharge of their duties.
The State Lottery Commissioners were, by the act of 1842, charged with the duty of drawing the lottery, and paying over to the commissioners named in the grant, the money authorized to be raised. Nowhere do we find any power or authority conferred upon them to supervise the acts of the special commissioners, or to make the ascertainment of the amount of expenses and interest incurred. They were directed to apportion the money raised among the several consolidated grants; but the distribution was to be made, so far as the grant in question is concerned, upon the basis ascertained by the special commissioners. In this case the decree was such an ascertainment, made by the proper parties, and if made [**23]  bona fide, is conclusive of the question. If there was collusion or fraud in the ascertainment, a corrective may be applied, so as to prevent the abuse of the powers and privileges granted; the proceedings before us show neither.
Judgment reversed, writ ordered, and procedendo awarded. 

12 of 18 DOCUMENTS 

CHARLES B. HANSON & WIFE, and WM. B. NELSON & WIFE, vs. JOHN T. WORTHINGTON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 418; 1858 Md. LEXIS 35 

July 22, 1858, Decided 

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

The two appeals in this case were taken, the one by the complainants, Hanson and wife, and Nelson and wife, and the other by two of the defendants, John T. Worthington and Samuel Worthington, from a pro forma decree of the court below, (KREBS, J.,) dismissing the bill filed by the complainants. The claim set up by the bill, the defences thereto relied on in the answers, and the facts, are all fully stated in the opinion of this court.  

DISPOSITION:
Decree reversed, and decree in favor of complainants.  

HEADNOTES:

A testator bequeathed $ 10,000 to a trustee, who was also one of his executors, to be put at interest, or invested in stocks, and to be held in trust, to apply the income to the support of the testator's wife during her life, and, after her death, he gave and bequeathed said sum and the securities in which it may have been invested, to the children of his daughter Mary. He further directed that the power of thus putting at interest, and investing, and of selling and reinvesting, as often as the trustee deemed expedient, should be a continuing power during the requisite continuance of the trust. The wife renounced the provisions of this will. HELD:

1st. That by such renunciation the rights and interests of the legatees in remainder were not affected; the estate in remainder was vested in such legatees, and the renunciation only struck from the will the bequest to the wife.

2nd. The trust thus created and vested in the trustee, was not limited to the life of the wife, but was a continuing, subsisting trust after her death for the parties in remainder, and the trustee could only be discharged from his obligation by payment of the fund to them.

3rd. The executor and trustee having, under a mistake as to the effect of this renunciation, settled up the estate, and wrongfully paid this legacy to the residuary legatees, both he and they are responsible to the cestuis que trust therefor, the former primarily, and the latter ultimately.

4th. Limitation is no bar to this claim, and, under the circumstances of the case, there has been no such lapse of time, or laches and delay in making the claim, nor acquiescence and concurrence in the settlement of the estate and distribution of the fund, as will bar the complainants of their equitable relief.

5th. The parties who wrongfully received the legacy, being bound to refund the same, having taken it subject to the trust, and they, as well as the trustee, being alive and in court, upon a bill filed by the cestuis que trust against all of them, the decree, while providing for payment to the complainants, will also give the trustee relief over against his co-defendants.

6th. The complainants are entitled to interest on the principal sum due them for this legacy, from the time the same was wrongfully paid to the residuary legatees, but several payments having been made through a period of years, it should be counted, under the circumstances of the case, only from the date of the last payment.

Where a trust is created by a will in a party who is also executor, the probate of the will, and taking out letters testamentary thereon, by such party, are sufficient evidence of the acceptance of the trust.

Where a party has once fixed himself by any means with the acceptance of a trust, he cannot afterwards, by disclaimer, renounce or repudiate the duties and responsibilities of the office.

Where the subject of a trust is personal estate, the whole legal interest is in general vested in the trustee by a gift, without any words of limitation, and will continue in him till divested by a legal transfer or assignment.

Where a party is sole executor, and also a trustee, the fund will, by operation of law, be considered in his hands as trustee, after the time limited for the settlement of the estate, and where there are two executors, and one dies, the same principle applies to the survivor.

A release executed by a female infant to her guardian, after attaining the age of eighteen, is, if bona fide made, a good acquittance to the guardian, but cannot discharge from liability a third party holding funds as her trustee, which were never paid or transferred to the guardian.

A release discharging an executor from the sums due to the parties releasing, as residuary legatees, cannot operate to discharge him from his liability as trustee for a specific legacy bequeathed to him in trust for the benefit of the same parties executing the release.

What lapse of time and laches are sufficient to bar the right of parties to recover on a claim purely equitable, depends upon the particular facts and circumstances of each case.

Proceedings of an executor in the orphans court, in reference to the distribution of the estate, made ex-parte, there being no appointment of a meeting of claimants, as provided by the testamentary act, and no order of the court directing the distribution, are not conclusive upon any party affected thereby.

Where a party equally entitled with the complainants to a legacy claimed by the bill, is made a defendant, and by his answer disclaims any claim for such legacy, the bill as to him should be dismissed.

Where two of several defendants, in their answers, claim rights and relief as against their co-defendants, in case the complainants should be entitled to relief, and the decree of the court below dismissed the bill with costs, they not being aggrieved by such decree, cannot appeal therefrom; an appeal on their part is not necessary in order to save their rights.  

COUNSEL:
Geo. W. Dobbin and J. N. Steele for the complainants:

1st. The bequest of $ 10,000, in the will of the testator, to John T. Worthington, in trust, for the maintenance and support of the testator's widow, during her life, and after her death to the children of his daughter Mary, vested in remainder in said children upon the death of the testator, and became payable to them on the death of the widow, and the renunciation of this bequest by the widow, in no wise affected the interest of the legatees in remainder. All that fell into the residuum by this renunciation, and all that the widow gave up thereby, was the income with which the [**2]  trustee was to maintain the widow durante vita, and the right of such maintenance. 1 Gill, 403, Darrington vs. Rogers.

2nd. There was no renunciation by John T. Worthington of the trust created by this bequest, and the funds having come into his hands, he is bound to account to the legatees in remainder therefor, with interest thereon from the date of the death of the widow. On this point it is objected, first, that there was no trust for the legatees in remainder. But the trust clearly extended to them, and the trustee had duties to perform towards them; the subject of the trust was personal property, which he was bound to pay over to the parties entitled, upon the death of the widow. The will imposes two classes of duties upon the trustee in reference to this bequest, one in regard to the income, and the other as to the principal; the former he was to apply to the maintenance of the widow during the life, the latter he was to pay over to the legatees in remainder upon the death of the widow; and by the express terms of the will, his powers and duties as such trustee were to continue during the requisite continuance of the trust. Again, it is said he did not accept this trust,  [**3]  but renounced and repudiated it. But, in point of fact and law, he did accept. He came forward and proved the will, and took out letters under it, and where a party does this, he is bound to execute the will, and accepts the trusts thereof. Hill on Trustees, 314. How has he renounced or repudiated it? The law requires plain, strong and unequivocal proof of his renunciation before the trustee can divest himself of such a trust. 4 H. & J., 430, Fishwick vs. Sewell. Now it is not pretended that this trustee ever expressly renounced this trust, or that he ever said a word repudiating it, but the renunciation is sought to be inferred from certain acts, or rather from his non-action. The testator died in 1834, and the executor's 1st and 2nd administration accounts were passed in 1837, and he now says, that because in these accounts no notice was taken of this legacy, he never was trustee of it; that is, the non-performance and non-discharge of his duties as trustee, is proof that he never was trustee, or, if he ever was, that he renounced the trust. This is to set up a breach of trust as a disclaimer of the trust. But the inventory, the administration accounts, and the various distributions [**4]  show that for the whole time he was in receipt of the property in the character in which the will cast it upon him. The estate remained open, and is in fact still open, no final account by that name having yet been passed. It is also clear law, that where a trustee has once accepted a trust, he cannot afterwards, by disclaimer, renounce or repudiate the duties and responsibilities of the office. Hill, 219. Again, it is well settled that where a party holds the double capacity of executor and trustee, the fund will be considered in his hands as trustee after the time limited by law for the settlement of the estate, nor is this principle or the responsibility of this trustee and executor to the cestui que trust at all varied by the fact that there were here two executors, for each is liable to them for the full extent of the funds he receives. 1 Md. Rep., 190, Beall vs. Hilliary. The trustee, therefore, having accepted the trust, he could only discharge himself of it by paying over the money to these legatees in remainder, and his failure to do so, is a breach of trust for which he is primarily liable, and failing this liability, the residuary legatees, to whom the fund has been wrongfully [**5]  paid, are responsible to these cestuis que trust, and interest should be calculated from the time the fund became due and payable to them. Hill, 173.

3rd. There have been no such laches, acquiescence or concurrence in the acts of the trustee and executor, on the the part of the complainants, as will discharge him from liability. The acts of Worthington, as executor, in making these various distributions, do not protect him, for he settled up the estate in the orphans court without plenary proceedings, as provided for in the act of 1798, ch. 101, sub-ch. 14, sec. 12, and in doing so, he merely acted in pais, and at his peril. 4 Md. Ch. Dec., 425, Conner vs. Ogle. As trustee, nothing but gross laches on the part of the cestuis que trust will protect him. A party standing by and ignorant of his title, and acting under a plain and acknowledged mistake of his legal rights, will not forfeit those rights in consequence of such misapprehension. 6 H. & J., 525, 526, Lammot vs. Bowly. But we need not go to this extent, for there has been no acquiescence on our part in any act of the executor or trustee, inconsistent with our claim to this legacy. The release to the executor is only for [**6]  the distributive shares of the residue, and purports to be given by the parties to it as residuary legatees. It only acknowledges the receipt of such funds as far as they have come to the hands of the executer, and been accounted for by him. What information did this give us of the legacy, or that the executor had not retained for it? It is perfectly consistent with this release that there may have been other assets to be received and accounted for, out of which this legacy could have been paid, or that the executor had retained therefor. Nor are the releases to the guardian of any more avail. They only purport to release the guardian for what he has received, whereas this is a claim for money which never came to his hands. Besides, at the time these releases were signed, the complainant legatees were minors, and have since been married women, and under all the circumstances of the case, it is confidently insisted there have been no such laches, acquiescence or lapse of time as will prevent them from recovering this claim from the trustee and the parties to whom it has been wrongfully paid, all of whom are now alive and in court, with this very fund now in their possession.

4th.  [**7]  That the statute of limitations does not apply to this case, the trust being enforcable only in equity. It was a subsisting, continuing, active trust, over which a court of law had no concurrent jurisdiction, but which could only be enforced in equity, and to such a case the statute of limitations has no application. 1 Story's Eq., secs. 539, 540, 129. 3 Gill, 159, Dugan vs. Gittings. 8 Gill, 395, Barnes vs. Compton. 3 Md. Rep., 366, Hertle & Wife, vs. McDonald. 4 Md. Rep., 362, Young vs. Mackall. 5 Md. Rep., 334, Greenwood vs. Greenwood. 6 Md. Rep., 319, McDowell vs. Goldsmith. 6 Md. Rep., 418, Bowie vs. Stonestreet. 8 Md. Rep., 87, Teackle, et al., vs. Gibson. 3 Sumner, 476, Baker vs. Whiting. 2 Hawks, 486, Tate vs. Greenlee. Ibid., 490, Falls vs. Torrance. 1 Dessaus, 150, Lindsay vs. Lindsay. 10 Leigh, 285, Baker vs. Morris. 3 How., 411, Oliver vs. Piatt. 1 Peere Wms., 554, Farrington vs. Knightly.

John V. L. McMahon for the Worthingtons, argued:

1st. That John T. H. Worthington, is not responsible to the complainants as trustee or legatee in trust of this bequest of $ 10.000, because the legacy and the trusts imposed by it were never accepted by him, but were, on the [**8]  contrary, disclaimed by him, by all his conduct and acts in the administration of the estate. There is not a single act or word of this trustee shown in the record, or in his administration of this estate in acceptance of this trust, and it is clear, that the duties and liabilities of a trustee cannot be imposed upon any one without his assent or against his will. 7 G. & J., 164, 165, Maccubbin vs. Cromwell. No express renunciation of the trust is necessary; there must be an acceptance of the trust, especially if the bequest be of personalty. There must be some assent or some act done in the capacity of trustee, before the law will make the transfer to him in that capacity, even where the same party is executor and trustee. (16 Alabama, 14, 15, Perkins vs. Moore.) But here there were two joint executors and but one of them is made trustee by the will, and in such a case the principle of a transfer by operation of law does not apply. 2 G. & J., 220, Watkins vs. The State. Where an executor is also legatee, it is necessary to the vesting of the legacy in him, that he should give his assent, either express or implied from his doing some act in the character of legatee rather than that [**9]  of executor; it is not enough that the act is equally applicable to both characters. 2 Wms. on Excrs., 849, 850, (Ed. of 1832.) 7 Taunt., 217, Doe vs. Sturges, in 2 Eng. C. L. Rep., 80, 81. A renunciation of a trust may be by parol, and at any length of time, or by conduct inconsistent with the character of trustee. Hill on Trustee, 221, 226.

2nd. That by the renunciation of this bequest by the widow, all the trusts for her benefit created therein, became wholly inoperative and void, and thereby all the rights and duties of Worthington, as trustee under the bequest, wholly ceased, and there remained only the direct bequest over of the sum of $ 10.000, after the death of the widow, to the children of the testator's daughter Mary. That after this renunciation, Worthington had not the right, nor if he had, was he under any obligation, as trustee for those in remainder, to claim and hold the bequest only for the purpose of handing it over to the legatees in remainder, at the death of the widow. And that after this renunciation, by force of which the bequest resulted to the estate during her life as undisposed of, the legatees in remainder, at her death, became entitled to it, (if [**10]  at all,) by a direct and immediate devise, without the intervention of a trustee, and were entitled on their own application, to claim or have secured to themselves at her death the payment of the same, and Worthington is not responsible to them for not having claimed or secured the legacy for them. It is well settled, that the estate to a trustee is limited by that to the cestuis que trust, that he takes no greater estate than the purposes of the trust require. The only purpose of this trust was to create a trust for the life of the widow; the moment she died the trust ceased. The language of the devise clearly shows this to have been the sole object and purpose of the testator. After the widow's death the money was to be handed over by the executors to the legatees in remainder, as the testator's property, and they were to receive it by virtue of a direct and immediate devise, without the intervention of a trustee. In support of these views see Hill on Trustees, 239. 1 Barn. & Cress., 336, Player vs. Nicholls, in 8 Eng. C. L. Rep., 94; 60 Eng. C. L. Rep., 669, Muller vs. Claridge; 4 Mees. & Wels., 428, Barker vs. Greenwood.

3rd. That the time, manner and circumstances of the [**11]  administration and distribution of the estate, down to its final distribution amongst the complainants and others as residuary legatees, and the lapse of time before making this claim, show not only such acquiescence, but also such concurrence on the part of the complainants, in the final distribution without deduction of this bequest, and with full knowledge or means of knowledge that it had not been paid or retained for, and also such delay and laches in the assertion of the claim, until long after the death of the widow, and the final distribution, as are of themselves sufficient to bar the complainants' title to relief against John T. H. Worthington, if they ever had any, especially when coupled with the facts of the release to him and his co-executor by the husbands of the female complainants, and also of the wives and legatees after their arrival at age, to their guardian and father, and after his release to the executors. And neither is Worthington, as surviving executor, responsible to the complainants for their share in remainder of this bequest, because of his failure to retain for the same; for after the widow's renunciation, it was the right and duty of the legatees in [**12]  remainder or their legal representatives, to claim or apply for the retainer of this legacy, and being guilty of laches in not claiming the bequest or the retainer for it, when they had full knowledge of it, and that it had not been paid or retained for, they cannot charge the executors because of their failure to retain for it. After the death of the widow, in 1838, this legacy was payable immediately to the legatees in remainder, and, after it became so payable, the executors finally distributed to the complainants or their legal representatives and the other residuary legatees, assets to more than the amount of this bequest without any claim made by them thereto, or any pretence of objection to the distribution without deducting the legacy, and received from the complainants or their representatives the releases above stated, whereby and by the acquiescence, concurrence and laches of the complainants before stated, the executors were discharged from liability to them, if there ever was any. Again, the estate was finally distributed in the lifetime of Johns and by both executors, and the breach of duty, if any, was by both, and to any claim for relief on that ground, the legal representatives [**13]  of the deceased co-executor are proper and necessary parties.

The executor, in dealing with this estate, was acting honestly, innocently and as much to his own prejudice as that of the complainants, for he himself was one of the legatees in remainder of this bequest. If there was a mistake he was helped on in it by the complainants, and there is an equitable plene administravit made with their knowledge and consent. If a party to whom a legacy is given says to the executor, "I don't mean to claim it," this is an estoppel, and he cannot afterwards claim it, or induce the executor to administer the assets upon the footing that no such claim will be asserted, this is an estoppel, and the claim cannot be afterwards asserted. 1 Ves. Jr., 172, Clinton vs. Hooper. Bell on Property, 195, in 67 Law Lib., 143. Acts and conduct may as strongly declare this to the executor, and be as much evidence of a disclaimer as words. It must be assumed, that all these parties knew all their rights, the will, their rights under it, the administration and distribution accounts and releases in the orphans court; for outside parties even are bound to know what the public records will disclose. 5 Md. Rep.  [**14]  , 231, Miller & Mayhew vs. Williamson, and same case in the court of chancery in 2 Md. Ch. Dec., 102. 1 Bailey's Eq. Rep., 277, Stephenson vs. Axson, et al. But here these complainants came in and settled under these accounts in the orphans court, the proper distributing forum, and they knew, therefore, that the estate was being distributed in disregard of their rights to this legacy, and yet assented to such distribution.

Acquiescence alone is sufficient for this case. The complainants were bound to know what the law is, and whenever a party knows his rights, and stands by and sees another dealing with the property in a manner repudiative of his rights, and does not assert them, he is estopped from ever afterwards asserting his rights to such property. 7 Simons, 1, Govett vs. Richmond, in 9 Cond. Eng. Ch. Rep., 449. 2 Ves. Jr., 92, 93, Hercy vs. Dinwoody. 10 Md. Rep., 302, 317, Funk vs. Newcomer. Even forbearance to make the demand affords a presumption, either that the claimant is conscious it was satisfied or intended to relinquish it. 2 Ves., Jr., 583, Pickering vs. Lord Stamford. In Stroud vs. Stroud, 49 Eng. C. L. Rep., 416, a party entitled to a legacy had a claim against [**15]  the testator, which he concealed until after he received the legacy from the executor, and plene administravit was held a bar to such claim. These were all cases of outside acquiescence; here we are dealing with the proceedings of the proper distributing forum, and with parties to such proceedings, with full notice thereof, but have neglected to prosecute their claims. In such a case equity can afford them no relief. 1 Keen, 392, Sawyer vs. Birchmore, in 15 Cond. Eng. Ch. Rep., 399, 401. 17 How., 255, 256, Williams vs. Gibbes.

But this is also a case of concurrence in proceedings in the proper distributing court. As parties, the complainants are forever concluded; a decree of distribution would forever have concluded them from setting up any claim inconsistent with that distribution. The orphans court has as ample powers as a court of chancery, to adjudicate upon all claims between distributees, legatees, and administrators and executors. It is a court peculiarly constituted for the distribution of assets, and a general bill for distribution cannot be filed in chancery because it would interfere with the jurisdiction of the orphans court. Where an executor and legatee honestly [**16]  misconstrue the will, and have a settlement in full based on such misconstruction, the settlement will not be opened merely because of such mistake. 4 Richardson's Eq. Rep., 349, Keitt vs Andrews. If a cestui que trust, being sui juris, participates in, or consents to, or after full knowledge acquiesces in an act of the trustee, amounting to a breach of trust, it amounts to a waiver, he cannot afterwards complain. Adams Eq., 62, in 68 Law Lib., 93, 94. Hill on Trustees, (1 Am. Ed.,) 525, 526, 527. 5 Gill, 505, Hall vs. United States Ins. Co. The complainants here acquiesced, concurred and participated in an act on the part of the trustee and executor, which disturbed the basis of distribution according to the claim now presented, and they are thus clearly brought within the principle above stated. Lewin on Trusts, 639, in 24 Law Lib., 325.

Does infancy make any difference in this case? The complainants do not allege in their bills, any excuse by which they can be taken out of the case of adults, neither mistake, fraud, infancy or any thing else. But suppose they had alleged infancy, this defence could not avail them, and was completely waived by what subsequently took place. The [**17]  guardian is constituted the peculiar custodian of the infant's rights, and when he comes forward and deals with an executor and compromises the rights of his ward, the infant is bound, so far as the executor is concerned, and must look to the guardian's bond for redress. The executor is authorised to look to the guardian as the representative of the infant. But when these infants came of age they released the guardian, with full knowledge that this legacy had not been paid, and this release is binding on them. 5 Gill, 29, Forbes vs. Forbes.

Again laches and lapse of time are a full bar to this whole claim. Many of the cases already cited are applicable to this point. The question is, at what time parties must come in to be relieved from the equitable bar, and this depends upon the peculiar circumstances of each case. In 4 Richardson's Eq. Rep., 349, a case already cited, and one very similar to the present, it was said, that parties desirous of opening a settlement on the ground of errors or mistakes, must make haste in their application to the court. In 1 Bailey's Eq. Rep., 197, 198, Moore vs. Porcher, it was held, that an executor who makes a general distribution of the estate,  [**18]  will be protected after the lapse of four years; if he makes a full and fair distribution he no longer sustains the character of executor, but the trust is discharged. Again, the parties must come in at such a time as that the court can do full and equal justice to all parties. 13 Ohio Rep., 585, Ludlow vs. Cooper. If the overpaid legatees should be held not to be liable by reason of the laches of these complainants, then clearly the executor ought to be released. The plea of laches and lapse of time is as effectual as the plea of limitations, and they are analogously applied in equity. 2 Story's Eq., secs. 1520, 1520 (a,) and notes. 30 Miss. Rep., 320 to 332, Young vs. Cook. 11 B. Monroe, 161, Wickliffe vs. City of Lexington. The court itself, in its own discretion, may refuse to grant relief after the limited period, even though the statute is not pleaded and the bill is not demurred to. Lewin on Trusts, 617, in 24 Law Lib., 313. Hill on Trustees, 169, note. After disclaimer of the trust limitations will begin to run. These parties had a remedy at law; they could have sued in the orphans court, and they could have sued at law on the executors' bond. The remedy was at least concurrent,  [**19]  and in such case equity will, in obedience to the statute, apply the statutory bar.

4th. That in any view of the case, the court, having now before it, as parties to the case, under the supplemental bill and answer, the four residuary legatees who were overpaid in the distribution of the estate to the prejudice of these complainants, and the two Worthingtons, who were exclusively entitled to this bequest of $ 10.000, ought, in relief of the executor and trustee to give the complainants relief, if any, by direct decree against such overpaid residuary legatees. That he is entitled to such relief in this case and on this bill, as against his co-defendants, is clearly settled by the case of Gibson vs. McCormick, 10 G. & J., 101. The court has power to mould the decree, so as to do complete justice between the parties, (5 Gill, 355, Farmers & Mechanics Bank vs. Wayman & Stockett,) and will decree immediate payment from those who are ultimately bound. 5 Cranch, 330, Riddle vs. Mandeville. 1 Bailey's Eq. Rep., 277, 278, Stephenson vs. Axson, et al. Lewin on Trusts, 635 to 639, in 24 Law Lib., 323, 324. That these co-defendants are liable if the complainants have any claim, is clear,  [**20]  for by the distribution of the residue, without deducting this bequest of $ 10.000, they have by the admissions of their own answers, received more than they ought to the amount of $ 5000, or one-half thereof, and they received this with full knowledge of this bequest, and that it had not been paid as is fully shown by the will and the executors' accounts. These co-defendants are, therefore, each respectively and severally liable to the legatees in remainder, for the amounts they respectively received in the distribution of this residue, over and beyond what they were entitled to in the proper distribution of it. A devise of residue, is of what remains after debts and legacies are paid, and when a party takes this before the legacies are paid, he takes what the will does not give him, and receives it as trustee for those entitled, and must refund. 1 McCord's Ch. Rep., 389, McCants vs. Bee. 2 Johns. Ch. Rep., 626, 627, Lupton vs. Lupton. 17 Mass., 384, Walker vs. Hill. 2 Southard, 424, Harris vs. White. 2 Peere Wms., 144, Norton vs. Turvill.

5th. As to the quantum of recovery, if at all entitled. That by the distribution of the residue without deducting the $ 10.000, the complainants [**21]  each in fact received one-eighth of that amount, over and beyond what they were entitled to, or would have received if this legacy had been taken out of the estate, whilst they were each entitled to one-fourth of the $ 10.000, under the bequest, and they are therefore entitled only to one-eighth of that sum, as the amount necessary to correct such erroneous distribution and restore to them what they lost by it, and that without interest, at least until the filing of their bill, because of the non-claim, acquiescence, concurrence and laches already referred to. 12 Ves., 386, Bruere vs. Pemberton. 7 Ves., 546, Pettiward vs. Prescott. Hill on Trustees, 524.

As to the appeal by the Worthingtons. If the case made by the complainants entitles them to relief, then these appellants insist, as has already been argued, that they also and especially Samuel Worthington, although defendants, are yet as two of the legatees in remainder, entitled to like equitable relief in respect of their shares of this bequest against their co-defendants, made such by the supplemental bill of the complainants, and this appeal is taken to guard against the possible assumption, that by their failure to appeal [**22]  this right would be lost.

S. T. Wallis for the other defendants, argued:

1st. That the second point on the part of J. T. H. Worthington, was well taken, and ought to dispose of the relief sought by the bill as against these defendants also, and in addition to the authorities there relied on, see 1 Bradford, 5, Paff vs. Kinney; 8 Md. Rep., 230, McClellan vs. Kennedy; 7 Gill, 366, Richards & Wife, vs. Swan.

2nd. That the plea of limitations, pleaded by these defendants, strictly considered, apart from the question of laches in equity, is a bar to the relief prayed in the bill, even if it were otherwise proper to be granted. 10 Texas Rep., 246, Tinnen vs. Mebane. 2 Wms. on Excrs., 1722. 1 H. & G., 265, Murphey vs. Barron. 3 G. & J., 12, McCormick vs. Gibson. Ibid., 374, Penn vs. Flack, et al. Ibid., 395, Green vs. Johnson. 10 G. & J., 217, Tiernan vs. Rescaniere. 1 Gill, 234, Berry vs. Pierson. 3 Gill, 161, 162, Dugan vs. Gittings. 2 Md. Ch. Dec., 390, McDowell vs. Goldsmith, and same case in 6 Md. Rep., 319. 3 Md. Rep., 366, Hertle & Wife, vs. Schwartze. 7 Johns. Ch. Rep., 120, 124, Kane vs. Bloodgood.

3rd. If John T. H. Worthington is to be treated as trustee, it [**23]  is clear he has no remedy over against these defendants, for there is no privity between him and them in this character; it is a matter between the trustee and his cestuis que trust. It is only when he is treated as executor that a privity can be made out between him and these defendants. But even if he be liable as executor, to the complainants, he has no right to restitution from these defendants, having made the distribution in question voluntarily, with full knowledge of fact and law. 1 Gill, 1, Stevenson vs. Reigart. 4 Gill, 425, Mayor & C. C. of Balto. vs. Lefferman. 5 Gill, 244, Morris vs. Mayor & C. C. of Balto. 5 Md. Rep., 219, Miller & Mayhew, vs. Williamson. 2 Ves., Sen., 194, Orr vs. Kaines. 2 Vernon, 205, Newman vs. Barton. 1 Keen, 391, Sawyer vs. Birchmore, and same case in 2 Mylne & Craig, 611. 2 Jac. & Walk., 263, Goodman vs. Sayers. 8 Beavan, 243, Cattell vs. Simons. 2 Fonb. Eq., Part 1, ch. 2, sec. 5. 2 Wms. Excrs., 1244, 1246. 1 Story's Eq., sec. 92, note 4.

4th. That even if, as executor, being liable to the complainants, he might otherwise have had his remedy over against these defendants, he has no such remedy under the circumstances of this case, and especially [**24]  under the plea of limitations by them severally pleaded.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*432]  BARTOL, J., delivered the opinion of this court.
The claim for relief of the complainants, Hanson and wife, and Nelson and wife, arises under the following clause of the 

 [*433]  will of John Tolley Worthington: "I give and bequeath to my grandson, John Tolley Worthington, the sum of ten thousand dollars, to be by him put out at interest on real or personal security, or invested in bank stock, or in stock of the United States, or of the State of Maryland, to be by him held in trust for the following uses, intents and purposes, to wit: in trust to apply the dividends, interest, issues and profits arising therefrom, during the life time of my wife, Polly Worthington, to the maintenance and support of my said wife, and if any surplus of such dividends, interest and profits should remain, over and above the maintenance and support of my said wife, then I give and bequeath the said sum to my said grandson, John Tolley Worthington; and from and after the death of my said wife, then I give and bequeath the said sum of ten thousand [**25]  dollars, and the stock and securities in which the same may have been invested or placed, to be equally divided between the children of my daughter Mary, living at the time of the death of my said wife, and the then living descendents of my said daughter Mary, such descendents not taking per capita, but per stirpes; that is, the said descendants of a deceased child to take what their deceased parent, if living, would have been entitled to."
The testator having given other ten thousand dollars to Richard Johns, in trust, for certain purposes, directs as follows: "Item.--I hereby will and direct that the power of putting out at interest and investing in stock the aforesaid two sums of ten thousand dollars, mentioned in the two last preceding clauses of this my will, shall be a continuing power during the requisite continuance of the trust, and that my grandson, John Tolley Worthington, and my son-in-law, Richard Johns, may, as often as they shall see fit so to do, severally collect the money by them put out at interest, and sell the stock by them purchased as aforesaid, and again, and as often as they deem it expedient so to do, put out the same at interest, or invest in [**26]  stock as aforesaid."
By a codicil to his will, the testator declares his will and intention to be, that the said provision for his wife shall be "in lieu and bar of all her right, and thirds, and dower."

 [*434]  The testator died in 1834, the will and codicils were duly admitted to probate on the 16th day of September of that year, and on the 3rd day of October, in the same year, letters testamentary were duly granted thereon to John Tolley Worthington, the grandson, and Richard Johns, they being the executors named in the will. On the 26th day of September 1834, Polly Worthington, the widow, filed her renunciation of the bequest made in her behalf, and elected to take her dower and legal share of the estate. She died in the year 1838, and at the time of her death, the children of the testator's daughter Mary, then living, were the complainants, Anna Maria Hanson and Comfort M. Nelson, and the said John Tolley Worthington, the trustee and executor, and Samuel Worthington, who were the only descendants of the said testator's daughter Mary.
The executors proceeded to administer the assets, returned an inventory on the 25th day of October 1834, and passed several administration [**27]  accounts, of which the 1st was passed on the 11th day of January 1837, the 2nd on the same day, the 3rd on the 14th day of February 1839, the 4th on the 31st day of December 1839, and the 5th and last on the 12th day of May 1846. By those accounts it appears that the whole personal assets of the deceased which came to the hands of said executors, was applied to the payment of debts, the expenses of administration, and the payment of legacies under the will, other than the legacy of ten thousand dollars first above referred to, and the surplus or residue of the assets was distributed and paid to the residuary legatees under the will, in the same manner as if the said legacy of $ 10,000 had not been made.
The residuary legatees named in the will were the testator's eight grand-children, viz: John Tolley Worthington, Anna Maria Worthington, Comfort Worthington, Samuel Worthington, Polly Worthington Johns, John Tolley Johns, Richard Johns, and Sarah Weems Johns, two of whom, Anna Maria and Comfort, are complainants in this case.
By the 2nd administration account, passed on the 11th of January 1837, it appears there was distributed and paid to the 

 [*435]  eight residuary legatees [**28]  $ 4700 each. This sum for each of the complainants, Anna Maria and Comfort, was paid to their guardian, they being then minors; the receipts of the guardian show that he received for each of them as follows: in May 1835, $ 1500; in October 1835, $ 2700; and in July 1836, $ 500.
By the 3rd account, passed the 14th of February 1839, there was distributed and paid to each of said residuary legatees $ 950.96, which, by the several receipts exhibited, appears to have been paid as follows: in January 1837, $ 200; in June 1837, $ 237; in September 1837, $ 113.96; and in October 1838, $ 400.
By the 4th account, passed the 31st of December 1844, the executors are allowed for $ 700 paid to each of the residuary legatees, the shares of the complainants being paid to their respective husbands.
By the 5th and last account, passed in May 1846, the executors were allowed for $ 36.53 1/2, amount paid to each residuary legatee, the same appearing to be a distribution of the whole residue of the assets among the residuary legatees, who executed the following release:
"Know all men by these presents, that we, John T. Worthington, John T. H. Worthington, guardian of Samuel Worthington, Richard Johns,  [**29]  Jr., John T. Johns, R. Horace Love, who intermarried with Polly Worthington Johns, Thomas H. Hodges, who intermarried with Sarah W. Johns, Charles G. Hanson, who intermarried with Anne M. Worthington, and William B. Nelson, who intermarried with Comfort Worthington, all grand-children and residuary legatees of John T. Worthington, late of Baltimore county, deceased, do hereby severally acknowledge, each of us, to have received of John T. Worthington and Richard Johns, the executors of said deceased, the sum of ($ 36.53 1/2) thirty-six dollars and fifty-three and a half cents, making, together, the sum of two hundred and ninety-two dollars and twenty-eight cents, and being in full of our respective proportions of the personal estate of the said deceased, as far as the same has come to the hands of the said executors, and accounted for by them with the orphans 

 [*436]  court for Baltimore county; and in consideration thereof, we do hereby release, acquit, exonerate and discharge the said John T. Worthington and Richard Johns, executors as aforesaid, their heirs executors and administrators, of and from all and every action, suit, claim or demand which could or might possibly be brought,  [**30]  exhibited or prosecuted against them, or any of them, for or on account of our said proportions, or the above mentioned sum or sums of money, or the payment thereof, hereby declaring ourselves fully satisfied, contented and paid, as above specified. Given under our hands and seals this seventeenth day of July, in the year eighteen hundred and forty-five.  
J. T. WORTHINGTON, (Seal.)
J. T. H. WORTHINGTON, Guardian for Saml. Worthington. (Seal.)
RICHARD JOHNS, JR., (Seal.)
J. T. JOHNS, (Seal.)
R. HORACE LOVE, (Seal.)
THOS. H. HODGES, (Seal.)
CHAS. G. HANSON, (Seal.)
W. B. NELSON, (Seal.)

Signed, sealed and delivered in the presence of T. Hanson Belt."
Which release was duly acknowledged before a justice of the peace, and, on the 12th day of May 1846, was filed and recorded by the register of wills for Baltimore county.
John T. H. Worthington, guardian of Ann M. Worthington and of Comfort Worthington, accounted with his said wards for the several sums of money received by him during their minority from the said executors, and on their arrival at the age of eighteen years, the said Ann Maria and Comfort severally executed [**31]  releases to their said guardian, wherein each of them acknowledges to have received certain property and money therein specified, "being in full of all property and cash due to me by my said guardian;" and in consideration thereof, each of them "releases, acquits, exonerates and discharges the said John T. H. Worthington, as guardian as aforesaid, his heirs, executors and administrators, of and from all and every action, suit, claim or demand which could or 

 [*437]  might possibly be brought, exhibited or prosecuted against him, them or any of them, for or on account of the above mentioned property and cash, or the payment thereof, hereby declaring myself satisfied, contented and paid, as above specified."
The release of said Ann Maria being dated the 16th day of November 1839, and that of Comfort bearing date the 20th day of February 1841, and were severally acknowledged and duly recorded.
The complainants, Anna Maria and Comfort M., were married at about the age of nineteen years, the former to Charles G. Hanson, in January 1840, and the latter to Wm. B. Nelson, in February 1842.
The original bill in this case was filed on the 1st day of April 1854, against John Tolley Worthington [**32]  and Samuel Worthington, claiming from said John Tolley Worthington, as trustee, an account of the said $ 10,000 legacy, and the manner in which the same had been invested, and that there should be paid to the complainants their respective portions thereof. After answers were filed by the respondents, John T. Worthington and Samuel Worthington, the complainants, on the 8th day of January 1855, filed a petition praying leave to amend their said bill; and the same being granted, they on the 11th of January 1855, exhibited their amended bill, whereby they made parties defendants the said John T. Worthington as surviving executor, (Richard Johns his co-executor having died,) and also all the said residuary legatees, claiming among other things such relief as may be necessary to reform and correct the distribution of the said legacy of ten thousand dollars, so as to give to the complainants their full share thereof, and interest thereon from the time the same became payable, and to cause any of the said parties who may have received more than his, her or their share or shares, to account for, restore and pay over the same as they may be directed by the court, with interest thereon since [**33]  the date of such wrongful overpayments; and that the whole distribution of said legacy, and its accumulated interest, may be now adjusted, settled and paid over, as if the same had never been erroneously made.
The defence of the several respondents is based upon the 

 [*438]  lapse of time and the laches of the complainants in making their claim, their acquiescence and concurrence in the settlement of the estate by the executors, and in the distribution of the assets, and the releases executed by the said Anna Maria and Comfort M. to their guardian, and the release given by their husbands to the executors are also relied upon as a bar to the relief prayed, and the residuary legatees have pleaded the statute of limitations in bar of any claim against them, either by the complainants or by the respondent, Worthington.
A pro forma decree having been passed by the circuit court, dismissing the bill, the complainants have appealed to this court.
The respondent, John T. Worthington, by his answer, claims that in the event of his being held answerable to said complainants for their shares of said legacy, the other respondents, Love and wife, Hodges and wife, John T. Johns and [**34]  Richard Johns, who were overpaid in said distribution among the residuary legatees, ought to be compelled by decree to refund and pay the same to him, or by direct decree to pay the same to the complainants to his relief, and the said John T. Worthington and Samuel Worthington have also appealed from said decree.
It is clear, from the facts and circumstances disclosed by the record, that the executors acted from the beginning under a mistake as to the effect of the renunciation by the widow; and all the errors which occurred in the administration of the estate grew out of that mistake. The legal effect of such renunciation is not any longer a matter of contest in the cause; the authorities abundantly establish that by such renunciation the rights and interests of the legatees in remainder were in no wise affected. See Darrington vs. Rogers, 1 Gill 403; McElfresh, Admr., vs. Schley & Barr, 2 Gill 203.
While, therefore, the renunciation had the effect of striking from the will the bequest to Mrs. Worthington, the estate in the remainder was vested in the persons to whom the same was limited by the will.
We regard the probate of the will, and [**35]  the taking out of letters testamentary by John T. Worthington, as a sufficient 

 [*439]  evidence of the acceptance by him of the trust created by the will, and there is no proof of any actual renunciation or disclaimer till the filing of his answer in this cause. See Hill on Trustees, 214. 2 Wms. on Excrs., 1530.
"Where a party has once fixed himself by any means with the acceptance of a trust, he cannot afterwards, by disclaimer, renounce or repudiate the duties and responsibilities of the office." Hill on Trustees, 219.
Looking at the several clauses of the will which we have cited, we are of opinion that the trust created and vested in John T. Worthington, was not limited to the life of Mrs. Worthington, but was a continuing, subsisting trust for the parties in remainder after her death, and the trustee could only be discharged from his obligation by the payment of the fund to the cestuis que trust. The legal interest was vested in him by the will; he was charged with the performance of certain duties with reference to the fund; had the power of investing, selling and reinvesting; and to enable him to discharge those duties, and to carry out the purposes of [**36]  the trust, his estate extended beyond the life of Mrs. Worthington. Such, we think, was the intention of the testator, as gathered from the will. Whatever might be the construction of the will as to the extent of the estate vested in the trustee, if the property devised were realty--and on this question the authorities seem to be somewhat conflicting--here the devise is of personalty, and we entertain no doubt that the fee was vested in the trustee, and could not be devested, except by a transfer by him. Hill, in his treatise already referred to, after citing and commenting on the various cases in which this question had arisen, says, on page 248: "The question as to the duration of the estate of the trustees can rarely arise where the subject is personal estate; for in that case the whole legal interest is in general vested in the trustees by a gift, without any words of limitation, and will continue in them until devested by a legal transfer or assignment."
Such being, in our opinion, the true construction of the will, it follows that it was the duty of John T. Worthington, the trustee, to collect and receive the said legacy of $ 10,000, for the purposes of the trust.

 [*440]   [**37]  If he had been sole executor, it is clear that by operation of law, the fund would be considered in his hands as trustee after the time limited by law for the settlement of the estate. It has been argued that this principle is inapplicable to this case, because Worthington was a co-executor with another; and Watkins' case, 2 G. & J. 220, has been cited in support of that view. But it appears from the record that Richard Johns, the co-executor, died before the filing of the bill; Worthington then became, as survivor, the sole executor, and the principle to which we have adverted would therefore apply in the same manner as if he had been sole executor from the beginning. This is the plain inference from the ruling of the court in Watkins' case. The trustee is, therefore, answerable to the complainants as cestuis que trust for their respective proportions of the legacy, unless something has occurred to relieve him from such responsibility. In our opinion, the releases relied upon in defence cannot avail to bar the equity sought by the complainants. Conceding that the releases of the wards to their guardian, made after they had attained the age of eighteen,  [**38]  when by the statute they were competent to execute them, and being made bona fide, would operate as a good acquittance to the guardian, still such releases could not operate to discharge from liability any third person holding funds in the character of their trustee, or responsible to them in that character for funds which had never been paid or transferred to their guardian. Nor can the release to the executors, dated the 17th of July 1845, have the effect of discharging John T. Worthington, the trustee, from his liability for the specific legacy. The latter release, by its terms, purported only to discharge the executors from the sums due to the parties releasing, as residuary legatees of John T. Worthington, deceased, and applied only to the proportions of the personal estate of said deceased due to them in that character.
The only remaining questions for us to consider, are, whether the complainants are barred of their equitable relief by limitations or lapse of time, or their laches and delay in making their claim? or by acquiescence and concurrence in the settlement of the estate and distribution of the fund?

 [*441]  After a careful examination of the numerous [**39]  authorities cited as applicable to this part of the case, we are of opinion that none of these grounds of defence ought to prevail in this court. The bequest in the will is admitted to be valid, and the accounts exhibited show conclusively that it has not been paid to the parties entitled, owing to a mistake of the executors in the construction of the will. Those accounts show also, the manner in which and the persons to whom the fund has been improperly paid. The parties who have received wrongfully, as well as the executor and trustee, are alive and in court, subject to its decree; and we see no sufficient reason why the court may not do simple justice, by an equitable adjustment of the claims of the parties, and a correction of the errors which have been committed.
We have said that the trust in John T. Worthington, under the will, was a continuing trust; and that being so, we think the facts in the case do not show any such lapse of time, laches, or delay on the part of the complainants as can operate to bar their claim against him. What will constitute such a lapse of time and laches as will bar the right of parties to recover on a claim purely equitable, all the authorities [**40]  say, must depend upon the particular facts and circumstances of each case. In the administration of the estate, the duty of the executors was to ascertain the persons entitled to the fund; their proceedings in the orphans court were ex parte; no steps were taken by them, under the act of 1798, ch. 101, sub-ch. 14, sec. 12, in appointing a meeting of claimants, nor was the distribution made under any order of the court; it was not conclusive on the complainants, even if they had been sui juris. But even supposing that those proceedings were known to the complainants, or were constructive notice to them of the acts of the executors, until the final distribution was made, they were not a notification to them that the legacy was not to be paid; notwithstanding any thing which appeared in the accounts, there might have been sufficient assets in the hands of the executors, not returned to the orphans court, to pay the legacy, or sufficient assets for that purpose yet to be received by them. When the final distribution was made, the complainants 

 [*442]  were married women. Under these circumstances, we find no such acquiescence or concurrence on the part of the complainants as [**41]  ought to preclude them from relief against John T. Worthington, and inasmuch as the respondents, Love and wife, Hodges and wife, John Tolley Johns and Richard Johns, have erroneously received the fund to which the complainants are entitled, they are equitably bound to refund the same, they having taken the fund subject to the trust, and the defences set up by them cannot avail to bar the recovery by the complainants; what we have said as to the responsibility of Worthington, is equally applicable to them. See 2 Johns. Ch. Rep. 626, 627. 1 McCord's Ch. Rep., 388, 389. Stephenson vs. Axson, 1 Bailey's Eq. Rep., 274.
The sum which the complainants were entitled to receive under the will, was one-fourth part each of the legacy of $ 10,000; having already received the one-eighth part each of that sum, in the distribution erroneously made, there remains due to each of them the principal sum of $ 1250, on which we think they are equitably entitled to receive interest from the time that the same was wrongfully paid to the residuary legatees.
The payments were made to them in various sums and at different times, running through a period of several years; a portion [**42]  of the money thus paid to them, they were entitled to as residuary legatees, and in fixing the time from which interest is to be counted, we adopt the date of the last payment. Considering that the amount which the complainants are entitled to recover ought to be paid by John T. Worthington primarily, and that he is entitled to relief against the respondents, Love, Hodges, John Tolley Johns and Richard Johns, who are ultimately bound for the same, we shall decree accordingly.
As to the respondent, Samuel Worthington, who, by his answer, disclaims any claim for the portion of the legacy due to him, the bill ought to be dismissed.
Decree reversed, and decree in favor of complainants.

 [*443]  The same judge delivered the following opinion on the appeal of John T. Worthington and Samuel Worthington:
The decree from which this appeal was taken, was in favor of the appellants. They were respondents below, and by the decree of the circuit court, the bill was dismissed with costs. The appellants were, therefore, in no manner aggrieved thereby, and the appeal by them was erroneous, and must be dismissed. In order to save the rights of the respondents, John T. Worthington and Samuel [**43]  Worthington, as set up by them in their respective answers, no appeal on their part was necessary.
Appeal dismissed. 

13 of 18 DOCUMENTS 

WM. H. KEIGHLER, and others, vs. THE SAVAGE MANUFACTURING COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 383; 1858 Md. LEXIS 34 

July 21, 1858, Decided 

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

This appeal was taken from an order of the court below (LEE, J.,) continuing till final hearing, or further order, an injunction which had been granted upon a bill filed by the appellee against the appellants, and sustaining certain exceptions filed by the complainant to the answer of the defendants, for insufficiency.

The bill alleges that the defendants, as partners under the co-partnership name of Duvall, Keighler & Co., were, from the 1st of January 1850, to the 1st of June 1851, agents and factors for the sale of cotton goods manufactured by the complainant; that becoming somewhat embarrassed, and being sued by other creditors, complainant, at the September term 1852 of the circuit court for Howard county, in accordance with previous assurances, confessed a judgment in favor of the defendants for the nominal sum of $ 10,000, as a collateral security to secure such amount of indebtedness to them as upon a full and fair accounting, might thereafter be ascertained to be due, and that this judgment was confessed upon the express agreement and understanding that the same was but a collateral security, and [**2]  designed to put the defendants in the same condition precisely, as to security, as were the other creditors who had sued; that at the time this judgment was rendered, the defendants had in their hands, as collaterals for any sum that might be due them, one-half of a debt of $ 15,000, due the complainant by Mason & Son, of Baltimore, on their notes, and amply secured by mortgage, and which has been paid to the defendants, except perhaps a small part, for which the Masons have given them additional bills receivable; that complainant still confiding in the friendship of the defendants, and still consigning to them as usual, they, on the 22nd of March 1853, when complainant's chief officer or treasurer was, to their knowledge, lying dangerously ill, and when two of its corporators on whom, as the defendants well knew, complainant chiefly relied for the management of its affairs, were absent from Baltimore, and without any prior accounting with complainant, or applying and crediting to said judgment so much of said collaterals as had been realized, and the balance in process of being realized, and without any demand of any pretended indebtedness, and, in fact, without any notice or warning [**3]  whatsoever to any stockholder or officer of complainant, issued a fi. fa. on the judgment so rendered merely as a collateral, and levied the same for the whole amount thereof upon all the lands and possessions of every kind and nature of the complainant; that this act of bad faith on the part of the defendants, in reference to a judgment confessed merely as a collateral, induced the complainant to investigate the accounts and dealings between them, for the purpose of ascertaining whether, upon a fair accounting, any and what amount was due upon the defendants' pretended claim, the great confidence which the complainant, through its agents, up to this time, had in the defendants, having lulled all suspicion as to the accuracy of their accounts.

The bill then charges, that upon such examination, so far as could be ascertained from the face of the accounts, enough appears to show that the accounts, sales, and accounts current rendered complainant from the 1st of January 1850, to the 1st of June 1851, are untrue and fraudulent, and when properly restated, it will be found that defendants are indebted to the complainant; that many and large amounts of complainant's fabrics consigned [**4]  to the defendants for sale to others, have been returned as sold, when, in fact, they themselves have secretly and without complainant's knowledge or consent, taken said goods to their own account, and have resold the same at great profits, for which they have not accounted; that from time to time they have sold complainant's goods to purchasers at less than their market value, as an inducement to such purchasers to buy defendants' own goods; that from time to time they have sold, without authority, goods of the complainant so consigned to them, at prices lower than the rates fixed therefor by complainant's agents, and, in violation of instructions given by such agents, have sold such goods, when such agents, anticipating an advance in prices, have directed them to be withheld from the market, and which anticipations have always been realized, and that at such times defendants have made large sales to themselves, on the eve of such advances, or when such advances were actually taking place, or had taken place, thereby realizing great profits to themselves, which ought to have enured to complainant, and have thereby deprived complainant of all benefit of the rise in value of said goods,  [**5]  when such rise took place; that they have also fraudulently returned sales of goods as having been sold as of certain dates, when, in point of fact, such sales were really made at dates long prior to those reported, and that such sales have, contrary to law and equity, been credited with interest, as if made on the last day of the months in which they were reported, and not from the actual dates on which they were really made; that by means of these devices and others unknown to complainant, and also by compounding interest on balances which included interest, the accounts rendered have included heavy charges for interest against complainant, whereas by a proper statement of the accounts, according to the actual dates of the transactions, a large amount of interest would be found due complainant; that such accounts also contain charges additional to that of five per cent. for commission properly chargeable, and also charges of five per cent. for commission and guaranty on goods not sold, but secretly taken to defendants' own account.

The bill further charges, that since the rendition of the aforesaid judgment, many and large payments on account by collaterals of complainant held [**6]  by the defendants, have been paid to them, and which were made prior to the issuing of the execution thereon, and which were not credited on the judgment; that said accounts are fraudulent and inaccurate in divers other respects, which complainant is now unable to specify, because the same alone appear in the account books of the defendants, and to which complainant, by means of its officers and agents, has not access, and each and all of which said books of account, so far as the same contain any entries whatever relating to the sales of complainant's goods, are as much the books of the complainant, as principal, as they are the books of the defendants, as complainant's agents and factors; that with a view to obtain the exact truth of the matters before stated, complainant, through Geo. H. Williams, its attorney, and one of its corporators and directors, applied to the defendants for leave to examine said books so far as the same related to the affairs of complainant, which proper and lawful application has been steadily and constantly refused by them; that after the execution aforesaid was issued, a proposition for arbitration was made and assented to, but after considerable negotiation [**7]  failed, principally because defendants found that their books of account would be required to be produced, and which they allege the law will not coerce them to produce, and after countermanding the execution preparatory to such arbitration, the defendants now threaten to renew the same.

The bill then prays an answer on oath, and that the defendants may exhibit an account with complainant, setting forth truly and accurately, from the 1st of January 1850, to the 1st of June 1851, the exact day and date of all the sales of complainant's goods sold by them, the quantity thereof on each date, the persons to whom the same were sold, and the residence of such purchasers, the true prices and credits on which the same were sold respectively; that they may set forth a true and accurate account of the quantity of goods taken to their own account, as aforesaid, and the times respectively when so taken, and their subsequent disposition of the same, the times and dates when, and the exact prices and credits at which, and the names and residences of the purchasers to whom the same were sold; also an exact statement of the times, prices, and names and residences of the purchasers, and the quantities [**8]  of goods sold at less than the market price to induce sales of their own goods, and that the defendants may produce and discover each and all of the original books of account and entries containing any and every account whatsoever, relating to the sales of complainant's goods, and that, upon such production and discovery thereof, complainant may be permitted to surcharge and falsify the same, as well in the particulars herein mentioned, as in all others which may be made apparent in the progress of the cause, and for an injunction restraining the defendants from all further proceedings upon the judgment aforesaid, and for general relief.

The injunction was granted accordingly, upon bond in the penalty of $ 15,000 fixed and approved by the judge.

The answer in reference to the judgment, explicitly denies that it was taken as a security merely for a nominal sum of $ 10,000, or as a collateral security to cover any balance that might thereafter be ascertained to be due, upon a full and fair accounting between the complainant and the defendants, but they state that it was given as a specific security for $ 10,000, parcel of an acknowledged indebtedness of complainant to the defendants,  [**9]  then existing, of $ 14,862.36, and that it was intended to convert that amount of indebtedness into a judgment, so as to take it out of their account current, and that it was accordingly taken out, and has thenceforth been considered and treated as a judgment debt. They further show that this judgment was confessed by the complainant in the face of opposition, in open court, of Amos A. Williams, one of the corporators of the company, and at that time in litigation with it, and with the sanction of all the parties then having the management and control of the corporate affairs of the complainant. They further show that they had advanced for the complainant, by payment to another firm, with the concurrence of the complainant, a large amount of money, and which furnished part of the indebtedness of complainant to the defendants at the time this judgment was given.

The answer then denies all fraud of every kind imputed to the defendants, and proceeds to answer at length the several allegations of the bill, but for the purpose of this appeal, it is only necessary to state such parts thereof as the exceptions sustained by the order appealed from refer to.

These respondents state,  [**10]  that after the rendition of said judgment, they, under the written instructions of their counsel, credited complainant in their account current, as of the 20th of September 1852, with the amount of the judgment, and opened a new account, termed judgment account of the Savage Manufacturing Company, and after applying the collaterals as received to the extinguishment, in the first instance, of the balance due respondents on the old account current, there was a balance remaining to the credit of the company--the proceeds of said collaterals--of $ 1647.07 to be credited as of the 15th of February 1854, in part of the judgment for $ 10,000, bearing interest from the 31st of March 1853, to which last mentioned day interest thereon was paid by the complainant. In another part of the answer they say, on this point, they admit they held as security one-half of certain collaterals, being a debt due the complainant by Mason & Son, and that from said collaterals they realized certain sums which paid the residue of the indebtedness of the complainant, over and above the amount of the judgment, and produced a balance in payment pro tanto of said judgment as of the 15th of February 1855, of $ 1647.07,  [**11]  and they deny that they have received any further sum, in any way, on account of said judgment, except payment of the interest thereon up to the 31st of March 1853.

They say it is not true that they took goods to their account secretly, and without the knowledge or consent of the complainant. They admit it is true that goods were taken to their account at several times, but always with the full knowledge, consent and approbation, and sometimes at the pressing solicitation of George Williams, the known and authorized agent of the company, and with whom chiefly, during his lifetime, respondents had intercourse in their dealings with the complainant. And in this connection they state that it frequently happened that purchasers desired to purchase in quantities less than a bale, and in order to supply them with complainant's goods, respondents would take to account a bale at the then current rate, and that this course of dealing was well known to, acquiesced in, and approved of, by said George Williams, and was, in fact, beneficial to the complainant, and that it sometimes happened that the prices at which the goods were so taken to account, exceeded those at which respondents resold [**12]  them. They further say they never took goods to their own account, unless in case of single bales, without the express previous sanction and knowledge of the agent of the complainant, and that sometimes, in fact, they so took goods to their account against their own wishes and interest, yielding to the urgent and importunate request of said George Williams, who desired, for the use of the complainant, occasionally to have a larger credit with respondents than the state of their accounts and the course of dealing between them would have justified unless such goods were so taken to account, and that when so taken, they were always taken at current prices, and were sometimes sold at an actual loss.

Further answering, respondents state that the allegation in the bill, that they sold complainant's goods at any time at less than their market value, to induce purchasers to buy their own goods, is utterly untrue. They say that sometimes prices were limited at a rate higher than the market value, yet, with some few exceptions, they did not at any time sell under the limit, and whenever they did so, it never resulted in any loss to the complainant, and the fact was always made known to [**13]  said George Williams, and the sale sanctioned, approved and ratified by him, and in any instance in which they may have omitted to comply strictly with instructions, they took on themselves the risk of loss, and bore it when any in fact occurred; and they expressly aver that sometimes they charged themselves in account for goods as sold at certain prices, when in fact they received a less price, and did so uniformly whenever they sold at any price less than the limited price, and objection was made by said George Williams. All these matters were known to and understood by said Williams, and fully sanctioned and approved by him, and they deny that they made sales to themselves at any time, save with the sanction and knowledge, and sometimes at the urgent solicitation, of said Williams, whilst acting as treasurer of the complainant.

They further deny that the accounts by them rendered are unreal or fraudulent, or made for the purpose of concealing from complainant the true and accurate result of their sales. The accounts were correct; sometimes it may have occurred, and most probably did occur, that the precise dates were not accurately given. This may have arisen from taking an [**14]  average date of sales made in the course of several days, or of a week, or even of several weeks, where the sales may have been sparse, or by inadvertence sales may have been omitted to be entered at the proper time, and afterwards may have been entered as of the date when the error was discovered. They further say that they rendered regular accounts of sales made, and of goods taken to account, and by these accounts the dates from which interest was computed plainly appeared. These accounts were stated according to usage and general custom, and in accordance, moreover, with the known and established course of dealing between the complainant and these respondents, and if there had been any reasonable ground of objection on this score, the objection would have been, as it ought to have been, promptly made by the said George Williams, agent and treasurer as aforesaid.

They further state that all the accounts were honestly and truly rendered, and that it is not true that any such alleged frauds or inaccuracies would appear by the account books of these respondents. No account books were ever kept in which complainant has, or ever had, any interest or property; full and accurate accounts [**15]  being rendered regularly by respondents to the complainant of all the dealings and transactions between them. They admit that George H. Williams did apply to them for leave to examine their books with which request they declined to comply, and for the sufficient reason that he had no right to examine their private books, and because they had no book or books in which he or the complainant had any interest or property whatever, and they state that they never kept any such book or such books concerning the business of the complainant as stated in said bill.

Further answering, these respondents say that the complainant, in the accounts regularly rendered by them, has been furnished truly and accurately with the items of account from the 1st of January 1850, of all the dealings and transactions between them in every particular, and as far as they know and believe, the accounts so rendered are correct, although they will not aver that there may not be errors in date, but if such errors there be, they have not the information or means of now correcting them. That they are unable to give any other or further information than the accounts rendered by them furnish and afford; the said [**16]  accounts were truly stated, and are substantially correct, if not exactly so. These respondents say that, if bound to do so, they can probably state the names and residences of many of the purchasers of goods, but they are advised, as no such requisition was made at the times the accounts were rendered and approved, they are not now bound to take this extra trouble; and they further state that, by the usage and custom of trade, the names or residences of purchasers are never stated in rendering account sales, where the sales are guaranteed. They aver that the prices stated are the true prices at which sales were made, and the credits stated are the true credits at which the same were sold, although there may be instances in which, pending a limit, where persons were unwilling to purchase at so high a price as the limit, the goods were delivered upon the understanding that the same should afterwards be considered as sold at the then market price, when the limit should be taken off, or when the market price should attain the limit, whichever should first happen. They do not remember any case of this kind, nor do they know that there was certainly any such case, but it is possible such [**17]  instances may have occurred, and hence the qualification here made. They further state it is impossible for them to say whether goods taken to account were sold at a profit or a loss, or to whom sold, or when; with great labor some of the bales could probably be traced, but they are advised that, as all goods taken to account were so taken with the knowledge and concurrence, and generally at the instance of said George Williams, it is of no concern to the complainant in what manner, to whom, when, or at what prices the same may have been disposed of by these respondents. They again deny all fraud and all allegations of fraud, in whatever terms, charged or insinuated in and by the bill, and as to any supposed or pretended mistakes, they say that the several monthly and all other accounts rendered by them were plainly stated, were unambiguous and clearly intelligible, even to the plainest understanding; that the quantities of goods sold, and the quantities on hand, were always distinctly stated; that the dates on which the sales were reported to have been made, were always given, and it was in the power of any one who kept the run of the calendar, to ascertain whether the date was on [**18]  the Sabbath, and to have pointed out the fact; that the prices at which the sales were made, were always distinctly and accurately stated; that the times of credit were always distinctly and plainly set forth; that the time from which interest was to be allowed, was always plainly stated, and it was, therefore, in the power of the agents and officers of the complainant to have made objection, if any objections existed, as the grounds of such objections were plainly and obviously apparent on the face of said accounts

To this answer the complainant filed exceptions, both for impertinency and insufficiency. All of the former were overruled by the court below, and also all of the latter, except the following, which were sustained:

7th. For that they have failed to answer the allegation that, prior to the issuing of said execution, and since the rendition of the judgment, many and large payments on account, by collaterals, had been paid to them, and which were not credited thereon prior to said execution.

8th. For that while in said answer they have admitted their factorship, as alleged in the bill, they have failed and refused to discover and describe the books of account [**19]  kept by said defendants, in which the accounts of sales of complainant's fabrics are registered, and which, as factors, they were bound to keep, and in which, as the bill states, the frauds which are charged in the bill alone appeared.

9th. For while they admit in their answer that limits as to price were placed on complainant's fabrics so consigned, and that they sometimes sold under said limit, and that said George Williams sanctioned such sales, yet they do not state how often, when, and to what amount such sales under limits were made, nor to whom such sales were made, nor do they say when and to what amount said George Williams sanctioned such sales.

10th. For that while they admit that they sometimes charged themselves with goods at certain prices, when in fact they sometimes received for them less prices, and did so uniformly when such sales were not sanctioned by said George Williams, yet they do not say when, or how many goods, or to what amount, they so took to account, nor their subsequent disposition of them.

11th. For that while they aver that they never made sales to themselves at any time of complainant's goods, save with the sanction and knowledge, and [**20]  usually at the solicitation of said George Williams, yet they do not state what amount of sales were so made to themselves, nor when, nor to what extent, nor the number of times.

12th. For that while the bill charges that the pretended dates in their accounts of sales are untrue, and not the real dates of sales, and various evasive suppositions are set forth by way of answer thereto, yet they do not say whether they ever made such sales on Sundays or not, nor whether they did or did not render precise dates, nor whether such dates in such accounts correspond with the dates in their books of account, nor whether they believe the said dates to be the true dates of sale.

13th. For that they have failed to answer, and do not give the names and residence of the purchasers of complainant's goods, as called on by the bill so to do.

The defendants then filed answers to these exceptions, in which they say, in answer to the 7th exception, that after the rendition of said judgment for $ 10,000, they credited the complainant's account with that sum, and opened a new and separate account in respect of the judgment, leaving the balance of their old account thus reduced under its former [**21]  head. This was done in accordance with the directions of their counsel, whose letter of instructions, dated 1st of October 1852, herewith filed, marked X 3, was strictly followed. All receipts from collaterals, when and as received, were credited to the complainant, and the residue, after satisfying the balance not embraced in the judgment, was credited upon the judgment. The paper herewith filed, marked X 4, shows the dates and amounts of the receipts from collaterals in their hands. [This paper does not appear in the record.] They however state, that in point of fact, some of the money was actually in hand (and interest is thereon allowed to the complainant from the time it was so in hand) previous to the date at which it is credited, but the same was paid by the trustee under the Mason deed only on condition that the firms receiving the same would give their notes therefor, so that such payment was not in fact a credit, or to the use of the complainant, inasmuch as respondents would have had to refund the same by payment of their notes, if the title of the complainant in the pending controversy had been pronounced invalid. In reply to the 8th exception, they say that the statement [**22]  in their answer in this behalf is true. They have no such books as are supposed in the bill. In answer to the 9th exception, they say they are unable to give more definite answers than are contained in their answer already filed. The accounts from time to time rendered, embrace all such sales, and were and are just and true, and were fully examined, understood and approved. In reply to the 10th exception, they say they are unable to give any further information than is contained in their answer, respecting the matters specified in this exception. To the 11th, they say they are unable to answer more definitely than as set forth in their answer. The accounts, as rendered, truly and fully embrace all the particulars specified in this exception, although it is now impossible to point out the items. In answer to the 12th, they say that they never made any sales on Sunday, and if any dates in any accounts rendered by them indicate Sundays, then such dates are erroneous. Sometimes average dates may have been taken, and in such cases, if any, the average date may have been inadvertently adopted, without noticing that the same fell on Sunday. They, however, are not aware, nor do they admit,  [**23]  that there were erroneous dates in their accounts, and the statement in this behalf in their answer was merely hypothetical. They believe that the true dates of sales are stated in their accounts as rendered, and that in cases, if any, of average dates, that the average dates are truly and accurately stated. In answer to the 13th exception, they insist, as stated in their answer, that they are not bound to ascertain the names and residences of purchasers, and that it is not now, and was not at the time said accounts were rendered, the custom of Commission Merchants in Baltimore to render the names or residences of purchasers in case of such agencies, although if at the time said accounts were rendered, or within any reasonable time thereafter, the same had been requested, these respondents would promptly and with great pleasure have furnished all desired information. At this period it would be a work of much labor to comply with the demand, even in a partial degree, and it would be now impossible to comply with the same to any considerable extent.

A motion was made by the defendants to dissolve the injunction, and the complainant asked leave to take testimony in support of the [**24]  allegations of the bill, and a mass of evidence was taken, which need not be stated, inasmuch as the appeal was dismissed by this court, for the reasons stated in their opinion, and no final decision was pronounced on the merits of the case as disclosed by this testimony. The motion to dissolve and the exceptions were heard at the same time, and the court passed an order overruling all the exceptions, save those before stated, which were sustained, and the defendants required to make further answer thereto, and continuing the injunction till final hearing or further order. From this order the defendants appealed.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

An appeal will not lie from an order granting or refusing to dissolve an injunction, until answer filed, and an insufficient answer is no answer for the purpose of an appeal, but it is for this court, and not the court below, to judge of the sufficiency of the answer, it being for the appellate court alone to determine when an appeal will lie.

A party submitting to answer must answer fully and frankly, and he who evidently and purposely holds back something, cannot complain if he 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.

According to the chancery practice of this State, the motion to dissolve an injunction, and exceptions to the answer, are heard and decided at the same time.

Where an answer refers to a paper as showing the dates and amounts of receipts from certain collaterals in the defendants' hands, to a correct and detailed statement of which the complainant was entitled, and such paper does not appear in the record, an exception for insufficiency in this particular must be sustained.

It is the duty of a factor to keep books, in which shall be correctly entered the transactions on account of his principal, and the latter is entitled to a correct copy of the entries, including all memoranda connected therewith.

Where a factor has rendered his account-sales regularly, and the same were settled with full knowledge of all their items, and the names of purchasers were not then required, it is unreasonable, at any considerable distance of time thereafter, to subject the factor to a demand for such names, if his conduct has been honest and faithful, and free from fraud or deceit.

A judgment is the highest exercise of judicial power; prima facie it imports verity, and, as to the parties to it, is conclusive, unless mistake or fraud be shown, and the onus is on those who impeach it; it should be interfered with or questioned only with great delicacy and circumspection.

If a judgment is confessed with the agreement that it is not an ascertainment of so much actual indebtness, but only a security for so much as thereafter might be ascertained to be due, equity will prevent any use of the judgment for a different purpose, but the proof of such an agreement must be abundantly full and explicit, so as to leave no doubt on the mind of the court.

Good faith is the paramount and vital principle of the law governing the relation of principal and factor; the latter cannot purchase for himself the property of his principal consigned to him for sale to others, except with the knowledge, consent and approbation of the principal, upon a free, full and frank disclosure of every circumstance connected with the transaction, and a total absence of all fraud and concealment. 

COUNSEL:
Wm. Schley for the appellants:

The bill is based upon the alleged fraud of the defendants as factors, and the object is to obtain a general account of the dealings between the parties as principal and factors, from the 1st of January 1850 to the 1st of June 1851, being the period of the existence of such relation. The judgment is not assailed as having been obtained by fraud, mistake or surprise, but its efficacy is sought to be controlled by an alleged agreement, that it was not to operate and have effect as a judgment, but only as a security [**25]  collateral to an account thereafter to be taken for such sum, if any, as should appear to be due as the result of such account, and the injunction against execution of the judgment is prayed, as ancillary relief to the principal relief sought by the bill. Hence, two corollaries follow: 1st, if the complainant is not entitled to an account the injunction should be dissolved. Accessorium sequitur suum principale. 4 Md. Ch. Dec., 50, House vs. House. 4 Gill, 472, Geiger vs. Green. And 2nd, if the alleged agreement, that the judgment should only operate and have effect as a provisional judgment, be not sustained by competent proof, the injunction must fall even if the bill be retained as a bill for an account. And the appellants insist, that the appellee is not entitled to an account.

1st. Because the appellee has no real interest in the suit and can neither gain or lose by the result, and also because persons are interested in the suit, who are not parties thereto. The answer charges, and the allegation is sustained by the proof, that by some agreement the suit is prosecuted at the individual risk, and for the individual gain and profit of George H. Williams and Nathaniel Williams [**26]  or one of them, and if this be so, the corporation has no real interest in it, and these persons should be made parties to it: qui sentire commodum sentire debet et onus. Adams Eq., 702. Mitford's Pl., 259. 1 Story's Eq., sec. 503. The case in 9 Beavan, 292, Clarke vs. Tipping, is widely different, and there the persons whose beneficial interest was doubtful were made actual parties, and the complainant in that case had in his own right a contingent interest, and had, by derivation of title the interests of two of the creditors.

2nd. The account between the parties having been in fact stated and closed by the complainant's note, the complainant cannot maintain the ordinary bill of account, which lies only where no adjustment has taken place. A settled account can only be impeached for error or fraud. 1 Gill, 350, Stiles vs. Brown. If impeached for error (without fraud) the complainant is only permitted to surcharge and falsify, and is not entitled to a general account. 1 Md. Ch. Dec., 306, Williams vs. Savage Manf. Co. 1 McN. & Gordon, 93, Allfrey vs. Allfrey. If impeached for fraud, the fraud must be palpable and be clearly proved by undoubted testimony. Note to Macnaghten's [**27]  Select Cases, in 74 Law Lib., 97. The rule requires convincing proof--no acquiescence with knowledge, no unnecessary delay after the detection of the fraud in making complaint--no antecedent neglect in making proper and necessary examinations of the accounts. 1 Story's Eq., secs. 523 to 527.

3rd. The fraud alleged in the bill being flatly denied by the answer, is not sustained by any proof which even justifies a suspicion, much less maintains the hypothesis of fraud. The exhibits adduced as specimens of the accounts, are not wrong in any particular, but if wrong they were not rendered during the ageney of these appellants. The complainant has possession of the accounts rendered by the defendants, and not one is produced or shown to be even wrong much less shown to be fraudulent. The transactions of the former firm, whose account these appellants satisfied with the sanction of the complainant, cannot be investigated in this suit, as they are not parties. So as to the accounts of the succeeding firm; and for two reasons, firstly, because other persons are interested who are not parties, (2 Gill, 481, Hardesty vs. Wilson,) and secondly, because the period covered by this bill is [**28]  limited to the time, between the 1st of January 1850 and the 1st of June 1851.

4th. Even if it can be assumed, as alleged in the bill, that the accounts show fraud on their face, it would not aid the complainant, as it was clearly a duty to repudiate and reject the accounts at once: vigilantibus non dormientibus subveniunt leges. 5 Md. Rep., 367, Falls vs. Robinson.

5th. As to mere irregularities, as selling under limits, for instance, these were not necessarily fraudulent, and damages could have been recovered at law for the breach of any such orders. But the accounts on their face disclosed the terms of sale, the prices, the credit, and the quantities sold. By examination of the accounts, these imputed irregularities could have been detected, and in fact the accounts were examined, and all differences in these respects were amicably settled and adjusted.

6th. And as to so much of the note as was made up of the sum paid by the appellants to the former firm, even fraud on the part of that firm, if any could be shown, could not avail the complainant as against these defendants, because the accounts of that firm cannot be investigated in this suit, and secondly, the sum [**29]  was paid with the concurrence of the complainant. Upon no ground except the mere presumption of fraud, can the complainant have such an account as claimed; and it is not a bill surcharging and falsifying items which resulted in the two settlements mentioned in the evidence. The bill therefore, even on the motion to dissolve ought to be dismissed. 4 Gill, 472, Geiger vs. Green.

But even if the complainant is entitled to the account asked by the bill, still the injunction ought not to have been continued, because the alleged agreement in regard to the judgment was denied, and has not been proved. And on this point the appellants insist:

1st. No collateral judgment was asked for, but a simple ordinary judgment for a specified sum, parcel of a larger acknowledged indebtedness not deemed sufficiently secured by the collaterals held by the creditors, and the object was to convert so much of the debt, so insufficiently secured by the Mason collaterals into a judgment debt, and take the amount out of the account. This is the tenor of the correspondence offered in evidence, and is the effect of the judgment itself. It was so understood by the counsel for the creditors, and so understood [**30]  by the defendants. The evidence of Bradenbaugh only shows that pending transactions, not past settlements, were to be closed and the collaterals were to be credited. If the intelligent counsel for the company had so understood the transaction, at the time, he could have had it entered as part of the judgment, and as Amos A. Williams equally suspected all parties to the suit, and as he only desired to have a point left open for future controversy, such a paper would have removed, undoubtedly, his strenuous opposition to the judgment. But even if Bradenbaugh's evidence is clear and unambiguous, and even if it were competent evidence, it would not avail to establish the agreement, as against the positive answer of the defendants, whose answer was demanded on oath.

2nd. But the evidence of a parol agreement, even if proved by a score of witnesses, would not avail to vary the effect and operation of the judgment, it being conceded, that such a security was intended to be given as was in fact given. 1 Pct., 1, Hunt vs. Rousmaniere. 2 Md. Rep., 25, McElderry vs. Shipley.

3rd. Besides the technical estoppel by the record, the complainant is barred by an estoppel in pais, by reason [**31]  of the proceedings in Howard county court. The complainant there affirmed (and it enabled the plaintiff in the judgment to overcome the opposition of Amos A. Williams) a state of case utterly inconsistent with the theory of this bill. In attempting to do so the complainant is seeking to perpetrate a fraud upon justice.

4th. Solemn acts of courts of justice are not to be transacted as if mere mockeries. They are not to be used to prevail for one purpose and to be powerless for another. They import absolute verity, and the attributes and incidents annexed to them by law are not to be annulled on mere suggestions of fraud or error. It must be clearly proved and the complainant must be free from blame. 2 H. & J., 179, Contee vs. Cooke. 6 G. & J., 312, Gott vs. Carr. 7 Gill, 190, Briesch vs. M'Cauley. 9 Gill, 420, Beard vs. Hubble. 5 Md. Rep., 367, Falls vs. Robinson.

But the objection is now made, that the appeal has not been brought before this court in the manner required by the act of Assembly, and the cases of Richter vs. Pue, 9 G. & J., 475, and Hardesty vs. Wilson, 2 Gill, 481, are relied on. But independently of the effect of these decisions as binding authority, on general [**32]  principles it is clear, that the question of the sufficiency of an answer on a motion to dissolve, is a practical one, that is to say, if the bill on its face is without equity, then however imperfect the answer may be, the court will dissolve the injunction, without regard to the insufficiency of the answer. (3 Bland., 132, 162, 163, Salmon vs. Clagett. 5 Md. Rep., 367, Falls vs. Robinson. 7 How., 726, Hardeman vs. Harris.) If it meets and displaces the equity of the bill, (where the bill on its face presents a prima facie case,) it is enough to justify a dissolution, however short the answer may be as to matters not material to the equity of the bill. 4 Price, 339, Scott vs. Becher. 13 Price, 294, Bally vs. Kenrick. Wigram on Discovery, secs. 273, 278, in 13 Law Lib., 197, 198. How can an answer be insufficient quoad the injunction, if the injunction would still be dissolved, if the matters excepted to were not answered? The court below ought to have dissolved the injunction, because the complainant is not entitled to such an account as is claimed, and the alleged agreement as to the judgment has not been proved. But it is said, the decision of the judge is not open on this appeal,  [**33]  and the case in 2 Gill, is relied on as decisive on the point, and I admit the conclusiveness of that decision on this point, that the order sustaining the exceptions is not open for review on this appeal; that is, this court on this appeal will neither affirm nor reverse that part of the order appealed from, which sustains the exceptions, however erroneous the order may be. In the case in 2 Gill, the appeal was brought up under the acts of 1832, ch. 197, and 1843, ch. 73, from an order dissolving an injunction. The court affirmed the order, and the appellant desired to open, on the appeal, the question as to the propriety of the order in relation to the exceptions, for the purpose of sustaining the appeal. But the plaintiff's right to an injunction did not depend on the question of the sufficiency or insufficiency of the answer, but on the case presented by him in his bill, which, so far as not denied by the answer, was assumed to be true. The decision proceeded manifestly on the ground of a total want of equity on the part of the appellant to an injunction. But as in such an appeal no condition is required, that an answer shall be first filed, the only condition being, that the appeal [**34]  shall be brought up within thirty days, it is manifest that the case is no authority respecting an appeal under the act of 1835, ch. 380. That case was brought up in time, and it was properly before the court for review only so far as respected the injunction. If the question of jurisdiction to hear the appeal had depended on the preliminary question of the sufficiency of the answer, it does not follow from any thing said in that case, that the question of sufficiency would not have been considered, not for the purpose of review of the order respecting the exceptions, but for the purpose of deciding whether this court had or had not jurisdiction of the appeal, from the order dissolving the injunction.

The case in 9 G. & J., 475, was, however, an appeal from an order refusing to dissolve the injunction, and the court dismissed the appeal. The mere decision, as no opinion was filed, is no binding authority in any subsequent case not identical in its circumstances. 8 Md. Rep., 387, Edwards vs. Bruce. And if the court meant to establish the doctrine contended for by the appellee, it is to be presumed that they would have filed an opinion announcing the important rule sought to be [**35]  deduced from that case, especially as cases were coming up every term under this act of 1835. The court may have decided, that the decision of the court below was conclusive on the appeal from the order continuing the injunction, or, on the other hand, they may have decided that, in the opinion of this court, the answer was insufficient, and, therefore, the appeal was before them for review, as the right of appeal from an order refusing to dissolve, is given on the condition that an answer must be first filed; and this court may have further decided, that the matter of the bill not answered, was material to the equity on which the injunction was based. On looking at the record in that case it will be found, that whilst the chancellor overruled the exception as to the non-production of a book therein described, yet the exception which was sustained, concerned a matter material to the equity of the bill on which the injunction was based. To assume that this court adopted, as conclusive upon the appellant and upon the Court of Appeals, the decision of the inferior tribunal, would render the beneficial and beneficent provision of the act of 1835 a very precarious protection, and would,  [**36]  in many cases, annul the right of appeal. And it is for this court to decide, in all cases, whether an appeal properly lies. 6 H. & J., 302, Thompson vs. McKim. 11 G. & J., 137, Oliver vs. Palmer & Hamilton. 1 Md. Ch. Dec., 328, Chesapeake Bank vs. McClellan. And how can the court decide the question of its jurisdiction, without determining for itself whether an answer has been filed or not? Wherever the question of jurisdiction depends upon the ascertainment of a preliminary fact, the court, which is to decide the point of jurisdiction, must, for that purpose and to that extent, consider and decide that preliminary fact--not as in review of the decision of another tribunal, but as original question properly arising for decision on the point of jurisdiction. And it may happen, in a particular case, that an answer is sufficient as respects the injunction, and yet insufficient as to the general case presented by the bill.

But the exceptions are really hypercritical. The answers are full and ought to have been satisfactory. The observations of the master of the rolls, in Jodrell vs. Slaney, 10 Beavan, 229, are applicable to this case. The 7th exception is unfounded. The bill states [**37]  that the execution issued on the 22nd of March 1853, and was countermanded. The bill was filed on the 30th of January 1854, and the answer states that the defendants had received from collaterals sufficient to pay the balance of the claim and interest, and to leave applicable to the judgment $ 1647.07, as of the 15th of February 1854, and the further answer shows, that the receipts from collaterals were credited when and as received. The account therewith filed (X 4) has been lost, but it was filed. But the question is immaterial. What matters it whether money had been received before the execution or not? On a motion to quash it might have been material. But that execution was countermanded, and is functus officio. The eighth exception was sufficiently answered. The defendants denied that they had any such books, and the denial is repeated in the answer. What more can be required? If you seek discovery from a defendant you must take his answer; and his evidence on a motion for production cannot be questioned. Adams Eq., 14, 17, and notes. Wigram on Discovery, secs. 273, 278. But if the defendants had, in terms, refused to produce their books, and had acknowledged that in these books [**38]  there might be more particular information, what right has the complainant to look into these books? It is a new system of discovery, to charge a party with fraud and then ask to look into the private books of that party and take the chances of there finding evidence against him. And above all, cui bono, should the defendants produce their books or any books to prove the alleged fraud? The complainant is not entitled to an account as prayed, and manifestly not entitled to the continuance of the injunction, and, therefore, the exception concerns a matter not material to be answered. But again: where you seek discovery on oath you cannot also ask for production of books. You must ask for a schedule, and if the defendant admits he has them, you may move for production, but if he denies that he has them, you cannot contradict his answer and prove it false for the purpose of establishing its insufficiency. Adams Eq., 14, 17, and notes. The other exceptions are in principle the same. They assume, that where accounts have been rendered, they may be called for at any future period in another and more particular form than was originally required. They depend on the same principle as the seventh [**39]  and eighth exceptions.

But again, in point of practice, the injunction was improperly issued; for bond ought to have been given in double the amount of the judgment. Act of 1826, ch. 200, sec. 1. 5 Gill, 188, Alexander vs. Ghiselin.

Geo. H. Williams and Thos. S. Alexander for the appellee:

1st. The appellee moves to dismiss this appeal, for, that the exceptions to the answer having been ruled good and a further answer required, and the appellants having failed to make such further answer, they are not entitled to appeal under the provisions of the acts of 1835, ch. 346 and 380. The right to appeal from such an order, was given by these acts on condition of "the answer of the defendant or defendants being first filed," and an answer ruled insufficient upon exceptions, is according to chancery practice as no answer. This was the point decided in the case of Richter vs. Pue, 9 G. & J., 475, which was argued before a full court, and decided without dissent. It is not for this court to decide upon the sufficiency of the answer; all that they have to do is to look to the record in order to see whether there is an answer or not, and if they find there is no answer, then, according [**40]  to the acts of Assembly, they have no jurisdiction to entertain the appeal. And if the court below has decided the answer to be insufficient, it is just as effectual to prevent the appeal as if no answer appeared in the record.

2nd. But if the court decide that the appeal is well taken, then it is insisted, that the proper and only subject for revision, is the correctness of that part of the order appealed from which continues the injunction. No appeal will lie from an order sustaining exceptions to an answer. Act of 1835, ch. 185. In the case of Hardesty vs. Wilson, 2 Gill, 481, it is expressly decided, that on an appeal from an order dissolving the injunction and overruling exceptions to the answer, the exceptions are not before the court. And the right of the parties to review the order of the court in regard to exceptions, must be mutual and reciprocal.

3rd. But if this court should think the exceptions are now before it for any purpose, it is then insisted, that exceptions for scandal or impertinence are not overruled, by exceptions taken at the same time for insufficiency. That by the Maryland practice the exceptions are heard together, and at the time of hearing the [**41]  motion to dissolve, and, are therefore not overruled by the complainant's taking testimony in support of his injunction, to be used at the hearing of the motion to dissolve. 1 Bland, 181, Jones vs. Magill. Ibid., 353, Gibson vs. Tilton. 3 Bland, 400, Price vs. Tyson. Ibid., 132, 133, Salmon vs. Clagett. And that if the rule were, in strictness, otherwise, the appellants have waived their right to take advantage of it, by submitting to answer some of the exceptions, and by arguing the merits of all the exceptions. And in further support of this point, it is insisted, that the exceptions sustained by the court below were well taken. That a defendant submitting to answer must answer fully, is settled in this State by the case of Warfield vs. Gambrill, 1 G. & J., 511. The answer must apply to every material averment, and to all the particulars in which discovery may be necessary to the case stated by the plaintiff, and on the hypothesis, that he is entitled to be relieved in that case. The defendant cannot by answer deny the plaintiff's title, and refuse to answer as to facts which may be useful in evidence in support of that title. 1 Phillips, 349, Lancaster vs. Evors. 3 Madd. Ch. Rep.  [**42]  , 71, Mazzaredo vs. Maitland. Ibid., 432, Unsworth vs. Woodcock. 4 Madd. Ch. Rep., 252, ----- vs. Harrison. 10 Beavan, 225, Jodrell vs. Slaney. 3 Md. Ch. Dec., 72, Mitchell vs. Mitchell. The point of the seventh exception is, that while the defendants admit they held collaterals on which they have received large sums, they do not state the particulars of those receipts, with reference to times and amounts, which discovery is essential to ascertain whether their account is correct or otherwise. There is an averment, that the dates of these receipts will appear by a certain paper, which paper is not in the record, but there is no averment that these receipts were after the execution. They admit receipts of various sums, but do not make out, as they should, an account of every sum with the day and date of its receipt. As to the eighth exception. The defendants were agents for sale of goods consigned to them by the complainant, and, as such, were bound to keep accounts. They are asked to render an account and to discover the original books of account, and entries containing any and every account whatsoever, relating to the sales of these goods. They say they have rendered accounts from [**43]  time to time. They do not say they have no books containing such accounts as are called for, but only answer that "No account books were ever kept, in which the complainant has or ever had any interest or property," that "they have no such books as are supposed by the bill." Now it is insisted, that if the defendants kept the accounts relating to the goods of the complainant, in the books of account of their general dealings, they have thereby given to complainant such an interest in these books, as entitles us to call for their production. 3 Merivale, 43, Freeman vs. Fairlie. 1 Cox, 277, Earl of Salisbury vs. Cecil. 3 Younge & Coll., 659, Toulmin vs. Copeland. 9 Beavan, 287, Clarke vs. Tipping. As factors, they were bound to keep books and to disclose them. They say they have returned honest and accurate accounts, and yet do not disclose books. They admit they have account books, and we are entitled to a description of those books in order to their inspection as to original entries. The other exceptions which were sustained, insist on the right of the complainant to full discovery of particulars of dates, prices, quantities and purchasers, of goods sold or otherwise disposed of, the [**44]  answer admitting the sales and appropriations in the general. We were entitled to the names of the purchasers, so as to bring them up, and by their oaths to falsify the accounts if we could do so. The information to be given in answer to such questions, is such as the defendant can derive from his books and agents, not simply what is in his own personal knowledge. Adams Eq., 12. 3 Daniel's Ch. Pr., 2046 to 2048. Many of the exceptions which were overruled should have been sustained, and if this court is to answer the exceptions at all, it will review the decision below on these also.

4th. Upon the hypothesis, that the only subject for revision is the correctness of that part of the order appealed from which continues the injunction, it is insisted, that the merits of the discussion are on the bill, answer and testimony, taken in support of the allegations of the bill, and that the rule of judicature in such a case, is rightly stated in Md. Ch. Pr., 86, viz., "that so much of the bill as is not denied by the answer is taken for true, and likewise so much of the answer as is responsive to the bill," and as a consequence, "if any equity is admitted or is not denied, or if any material [**45]  allegation in the bill remains unanswered in any of its particulars, the injunction will be continued until the final hearing." As proof of the rule, it is submitted, that where the answer is evasive or unconnected, not meeting the averment in the bill, by a direct admission or denial, the charge is to be taken as confessed for the purpose of this hearing. 3 Bland, 132, 162, Salmon vs. Clagett. Ibid., 445, The Belona Company's Case. 7 Gill, 196, Briesch vs. McCauley.

The case on the merits, in brief, is thus: The company manufactured cotton goods, and the appellants were its sales agents. The appellants being largely in advance and holding in their hands as collaterals, "Mason's notes," and "goods in store," required a judgment as further security. They wanted a judgment for the full amount of their advance. The company insisted on limiting the judgment to $ 10.000. They say this sum was to be treated as a definitive adjustment and liquidation of so much of the debt. The company says, the judgment was to stand as a security for so much as might be ascertained to be due from one party to the other, and that the confession of judgment did not affect its rights to examine into the [**46]  correctness of the account. And it is insisted:

1st. That the pleadings and evidence sustain the company's view of the transaction, and especial reliance is placed on the testimony of Bradenbaugh, and on the admissions three times made in the answer, that the judgment was accepted, with notice that George H. Williams, the most active corporator and agent, and attorney, in confessing the judgment, expressed his dissatisfaction with the accounts, and his purpose at a future day to examine into them. We do not ask to destroy the judgment, but say, that for all the purposes for which it was rendered, it is as valid now as it ever was; that it is a collateral and nothing more, and that the use now attempted to be made of it is against conscience and equity.

2nd. That as there are no exceptions to the sufficiency of the averments of the bill, and no appeal is taken from the order granting the injunction, and the time limited for an appeal from that order is passed, the company is entitled to the benefit of any equity which arises out of the merits of the case, as disclosed by the entire record. Act of 1832, ch. 302, sec. 5.

3rd. That the charges in the bill of classes of errors,  [**47]  and the averment that the company cannot be more specific without an examination of the agents' books, which is denied them, sufficiently answers the objection, that the bill does not affect to surcharge and falsify in particulars. 77 Law Lib., 97, Macnaghten's Select Cases.

4th. That the objections of limitations, lapse of time, acquiescence and the like, are met by the averment, that the company has recently discovered the false and fraudulent conduct of the agents and of the accounts rendered. Such objections have place only after the discovery of the fraud. 11 Clark & Finnelly, 714, Charter vs. Trevelyan. 1 McN. & Gordon, 87, Allfrey vs. Allfrey. 6 Hare, 366, Wilson vs. Short. 9 Beavan, 287, Clarke vs. Tipping. 1 Johns. Ch. Rep., 550, Barrow, et al., vs. Rhinelander. 2 Jones & Latouche, 422, Murphy vs. O'Shea.

5th. It is averred in the bill, that large amounts of goods consigned by the company to the agents, to be sold by them to others, have been returned as sold, when, in truth, they were secretly, without the knowledge and consent of the company, taken on private account of the agents, and by them subsequently sold at great profits; and the agents are required to render [**48]  a full and particular account in detail, of the goods so taken and of the sales thereof subsequently made. It is admitted, that the goods consigned to be sold were taken by the agents to their private account; that these goods were returned as sold, and that they were subsequently sold by the agents at great profits, which have not been accounted for But it is pretended, they were so taken to account with the privity and consent of another agent--the treasurer of the company--and therefore, the discovery sought of particulars is refused. Now it is insisted, that an agent for sale has no right to take goods consigned for sale to his private account, and if he will do so, in violation of his duty, he forfeits all his commissions, and must account for any profits subsequently realized. 1 Starkie's Rep., 113, White vs. Chapman, in 2 Eng. C. L. Rep., 319. 3 Beavan, 84, Gillett vs. Peppercorne. 6 Hare, 366, Wilson vs. Short. 5 Bligh., 165, Rothschild vs. Brookman. 2 Ves. Jr., 317, Massey vs. Davies. 4 How., 503, Michoud vs. Girod. 2 Gill, 99, Brooke vs. Berry. 3 G. & J., 311, Diffenderffer vs. Winder. 12 Pick., 332, Dodge vs. Tileson. That the fraud in the act is, in this case, aggravated [**49]  by the misrepresentations on the face of the accounts; and that the case of the company being thus made out, all that is averred in regard to privity or consent on the part of the company, is matter in avoidance which the agents were bound to prove. 5 Bligh., 201. It is denied that there is any proof of acquiescence or assent to these improper acts of the sales agents, and that George Williams, who is supposed to have given his consent to these frauds, had any authority to bind the company by such consent. They admit they took goods to their own account, but say it was sanctioned by the company's agent, which amounts to this, that one agent may commit a fraud provided he can get another agent of the same principal to sanction it. And it is further insisted, that the company is entitled to the discovery sought, to assist in the preparation of the case, and the refusal to give the discovery entitles the company to a continuance of the injunction.

6th. The appellee in like manner relies on the several specifications of fraudulent misconduct which are enumerated in the bill, insisting, that in the present state of the record they are virtually confessed, and especially in the confession,  [**50]  that "there may be instances in which, pending a limit," (on the prices at which the goods were sold,) "where persons were unwilling to purchase at so high a price as the limit, the goods were delivered upon the understanding that the same should be afterwards considered as sold at the then market price, when the limits should be taken off, or when the market price should attain the limit, whichever should first happen." And it is insisted, that on the present hearing, the admission, that such cases may have happened, is to be treated as a confession that they did happen, and that such conduct was grossly fraudulent. And it is further insisted, that the plea of stated account is of no avail where the answer admits fraudulent transactions. 1 Story's Eq., sec. 523. Story's Agency, secs. 210 to 213.

7th. That the original entries by the agents in their general books of account of sales, or dispositions made by them of the company's goods consigned to them for sale, are entries to which the company have a right of access, and especially as it is confessed, that the accounts rendered are false in several respects, and especially in misrepresenting goods as sold, which are now admitted [**51]  to have been taken by the agents on their own account; and that on the present hearing it ought to be assumed, that the books if produced will show every fact which it is alleged will be shown by them. See authorities already cited in discussing the eighth exception.

8th. That upon the hypothesis of the appellants, that the judgment was a definitive liquidation of indebtedness to the extent of $ 10.000, it would not prevent an inquiry into the state of account with reference to any indebtedness beyond that sum, nor into the account of receipts and applications of the collaterals, nor the right of the company to apply the avails of the collaterals, beyond the residue of indebtedness correctly ascertained, in reduction of the payment.

9th. That the appellants having failed to render an account of collaterals, realized since the confession of the judgment, on this ground alone the injunction ought to be continued.

10th. That the confession, that the judgment was subject to credits at the time execution was issued, and that interest thereon had been paid up to the 31st of March 1853, for the whole sum recovered, entitles the company to a continuance of the injunction, until [**52]  all matters in equity shall be adjusted. 2 H. & J., 34, Lynch vs. Colegate.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*412]  LE GRAND, C. J., delivered the opinion of this court.
The bill filed in this cause has several objects in view, which may be thus stated: first, to enjoin the execution of a judgment in favor of appellants, and against the appellee; second, to procure a full and accurate account, embracing items and dates, of the dealings between the parties, the appellants having been the factors or agents of the appellee, for the sale of goods manufactured by the latter. The bill, in substance, alleges that the judgment sought to be enjoined was confessed by the appellee, not as an acknowledgment, absolutely, of so much indebtedness, but merely as a security for any which might thereafter be ascertained to exist. It also charges the accounts rendered by the appellants to be incorrect; that sales were reported to have been made, and at rates, when none such were made, and at the rates stated; that its agents, the appellants, took, on frequent occasions, to their own account goods, and reported them as bona fide sales,  [**53]  to its great loss. It asks for a full account of the dealing of the parties, including certain specifications and details, so that the complainant, when furnished with such information, may be enabled to surcharge and falsify. On this bill the court granted the injunction as prayed. The defendants answered, and the complainant excepted to the answer, both on the ground of impertinency and insufficiency. Testimony was taken, and a motion to dissolve the injunction and the exceptions were heard together. The court continued the injunction, and sustained of complainant's exceptions to the sufficiency of the answer, those numbered in the record 7, 8, 9, 10, 11, 12 and 13. From this action of the court this appeal is taken.
A motion has been made to dismiss the appeal, because of the want of an answer. This motion is founded on the language of the acts of 1835, ch. 346 and 380, which provide that an appeal will not lie from an order granting, or from the refusal to dissolve an injunction, until the defendant has filed his answer, and on the case of Richter & Wheat vs. Pue & Wife, 9 G. & J. 475, which determines an insufficient answer to be no answer within the view [**54]  of the acts of Assembly. It follows, therefore, that if the court below was right in holding 

 [*413]  good the exceptions of the complainant, or any of them of material importance, then this appeal must be dismissed. Before alluding to the exceptions, we think it proper to say that we do not agree with the counsel for the appellee, that no appeal would lie until the court below should adjudge the sufficiency of the answer. It is for this court alone to determine when an appeal will lie. Excrs. of Oliver, vs. Palmer & Hamilton, 11 G. & J. 136. Thompson vs. M'Kim, 6 H. & J. 302.
To confide the decision of this question to the court of original jurisdiction, would be, in many cases, to deny all review by the appellate tribunal. Besides, the language of the decree in the case of Richter vs. Pue, shows plainly that it was the judgment of this court, and not that of the court below, which determined the insufficiency of the answer. It says, that the defendants having "failed to file sufficient answers to the bill of complaint," &c. Not that the court below had so decided, but that this court so determined and adjudged, and, therefore, appeal dismissed.  [**55]  
It is a well settled principle of equity jurisprudence, that if a respondent submit to answer, he must answer fully; Warfield vs. Gambrill, 1 G. & J. 503; and that "the court expects from every one seeking relief, unreserved frankness; and he who evidently and purposely holds back something, cannot complain 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." 3 Bland 132. By the same authority we are assured that whatever it may be in the English courts, "it has long been the practice of this court (chancery) to hear and decide upon the motion to dissolve and the exceptions to the answer at the same time."
These citations are sufficient to show what are the questions before us, and the rules which are to decide them.
In the present condition of the record, it is impossible to state what, in fact, was the answer to the seventh exception. It refers to a paper marked X 4, as showing the dates and amounts of the receipts from collaterals in their hands. There 

 [*414]  is no such exhibit in the record, and, of course, this court [**56]  cannot undertake to decide upon its statements. It may, or not, have furnished a full and complete answer to the exception. All we can do, is to declare that the complainant is entitled to full knowledge of the amount of collaterals in the hands of the defendants, and also what has been received from them, and, indeed, a correct and detailed statement of the condition of such securities. We must hold the exception to have been properly sustained. We are also of opinion that the eighth exception is well founded. The answer to it, to say the least of it, is ambiguous; it refers to books such as are supposed in the bill. It is the duty of the factor to keep books, in which shall be correctly entered the transactions on account of his principal, and the latter is entitled to a correct copy of the entries, including all memoranda connected therewith. The 9th, 10th, 11th, 12th and 13th exceptions were, in our judgment, sufficiently answered. The answers, in substance, declare that the accounts were true in every particular, "and were fully examined, understood and approved;" that it is now impossible for the defendants to give the names of the purchasers in every instance; that had the [**57]  demand been made within a reasonable time, they might have been able to have furnished the information. We think the settlement of accounts, with full knowledge of all the items of which they were composed, without any intimation given that the names of the purchasers would ever be required, is a fact entitled to considerable weight, for although in a case of actual fraud during the life time of the parties, limitations will not bar, (4 How. 561,) yet when parties with complete information adjust their accounts, it would be unreasonable to subject them, or either of them, at any considerable distance of time thereafter, to a demand for names which could have been readily furnished, if required, at the time of accounting, but which, in the lapse of time, if not absolutely impossible, it is very burdensome and expensive to obtain. The obligation of candor is reciprocal. If it were the intention ever to make such a demand, the defendants should have been notified of it at the date of some of the adjustments, or within a reasonable time thereafter. This view, 

 [*415]  of course, is based upon the supposition that the conduct of the defendants has been honest and faithful [**58]  in all things; if, on the contrary, they deceived the complainant by false statements, and by the concealment of material facts, then it is competent to complainant to avail itself of every circumstance which will cast light upon the transactions of its factors.
The case involving large interests, and much time having already elapsed without any really practical result having been accomplished, and understanding it to be the wish of all parties, as announced at the bar, that when the case goes back, that it does so accompanied with the views of this court as to the principles upon which it should be ultimately decided, we will briefly indicate them for the government of the Superior Court.
AS TO THE JUDGMENT.--Prima facie it imports verity, and, as to the parties to it, is conclusive, unless mistake or fraud be shown, and the onus is on those who impeach it. A judgment is the highest exercise of the judicial power, and, as such, to be interfered with or questioned only with great delicacy and circumspection. Were this not so, our judicature, instead of being a guaranty of stability and certainty, would be worse than a farce; would be a snare and a trap to the confiding. The [**59]  law regards it as the final adjustment of the matter in dispute, upon which the parties may confidently rely. If, as alleged in this case, the judgment was agreed and understood by the parties to it to be, not an ascertainment of so much actual indebtedness, but only as a security for so much as thereafter might be ascertained to be due, then, in such case, it would be a fraud on the part of the appellants to use it for a purpose different from that of the agreement, and a court of equity would enjoin them from doing so. 10 G. & J. 226. But to establish such a proposition in direct conflict with the legal import of the judgment, the evidence should be abundantly full and explicit; so full, indeed, as to leave no doubt on the mind of the court. Unless evidence of this character be adduced, the judgment should be regarded as unimpeached, and remain in full vigor.
In the final decision of this case, the law governing the relation 

 [*416]  of principal and factor, is to be applied to the dealings of the parties. What that law is--so far as this case is concerned--we shall, as concisely as may be, state.
Its paramount and vital principle is good faith; [**60]  without it the relation of principal and agent cannot exist; and so sedulously is this principle guarded, that all departures from it are esteemed frauds upon the confidence bestowed. Almost any number of cases might be cited to support this declaration, but such a labor would be but an unprofitable employment of time, inasmuch as all that can be usefully noticed, has been in a very clear manner brought together by Sugden, in his work on Vendors and Purchasers, by Justice Story, in his commentaries on Equity Jurisprudence, and in the decisions of the Supreme Court of the United States. In these compilations we have, without unnecessary verbiage, the relative duties of principal and agent distinctly defined. There is no discordance between them; but, on the contrary, perfect harmony. In the case of Brooke, et al., vs. Berry, 2 Gill 83, the Court of Appeals emphatically recognized and adopted the views of Justice Story, contained in his commentaries on Equity Jurisprudence, as stated in section 315. In the celebrated case of Michoud, et al., vs. Girod, et al., 4 How., S. C. Rep. 503, (a case elaborately argued by counsel, and fully [**61]  considered in all its bearings by the court,) the views of Sugden are fully adopted; and he says, when speaking of agents and trustees other than those who are only nominally so, that they "are incapable of purchasing such property (that of their principal) themselves, except under the restraints which will be shortly mentioned. For if persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, and not to exercise it for the benefit of the persons relying upon their integrity. The characters are inconsistent." The Supreme Court, after fortifying this doctrine by the citation of a great number of cases, proceeds to announce as a consequence, that the law "prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account 

 [*417]  of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of [**62]  the person on whose account he buys or sells." From this it follows that the appellants had not, according to the general principle, the right to purchase the goods of their principal intrusted to them for the purpose of sale to third parties. The exception to this general rule, or, as Sugden terms it, "restraint," is thus expressed: "We scarcely need add," say they, "that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, and there is a clear contract ascertained to be such, after a jealous and scrupulous examination of all the circumstances, and it is clear that the cestui que trust intended that the trustee should buy, and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee, will be sustained in a court of equity." This extract from the opinion of the court, embraces both its own and the opinion of Sir Edward Sugden. And our late Court of Appeals, in the case already referred to from 2 Gill, after regretting that the inhibition was not without limitation, say--quoting the language [**63]  of Justice Story--"To deal validly with their principals in any cases, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition," is not to be permitted.
According to these doctrines, if the appellants, without the knowledge and assent of their principal, purchased or took to their own account, goods entrusted to them for sale, or, with the knowledge and assent of their principal, purchased its goods, the principal not being fully and thoroughly advertised of every fact and circumstance in the possession of the agents, such sales are invalid. Whether there were any purchases made by the appellants unattended by these indicia of perfect good faith, is a proper subject of inquiry for the court to which this cause will be remanded. The record, as it now stands, 

 [*418]  discloses nothing positive on this head, although it does much in regard to the general course of trade, and from the ordinary turn of things, it is inferred by witnesses and counsel that such purchases as are unauthorized by law, were made. The answers of the appellants declare every thing was done [**64]  with the full knowledge and approbation of the agent of the appellee. If this should turn out to be so, and that there was a free, full and frank disclosure of every circumstance connected with the transactions, and a total absence of all fraud and concealment, then, if the accounts between the parties be properly stated, we do not perceive how, under the decisions to which we have referred, such sales can be impeached in a court of equity. Whether the accounts are properly stated, is not for us to decide; that is more properly the business of a book-keeper or accountant; all we can do, is to point out the principles on which they should be stated. If the items composing the several accounts rendered, and the interest thereon, be arithmetically and properly averaged, then the result is precisely the same as though the interest had been computed separately on each item from its true date. This is a mathematical fact.
With these views we dismiss the appeal, the injunction remaining until further order of the court.
Appeal dismissed. 

14 of 18 DOCUMENTS 

JAMES T. PARSONS vs. GEORGE W. HUGHES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 1; 1858 Md. LEXIS 2 

June 2, 1858, Decided 

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

The bill in this case, filed on the 9th of March 1857, by the appellee against the appellant, alleges, that the complainant became surety of Parsons, and on the 8th of October 1855, united with him in confessing a judgment in favor of the parties to whom the debt was due, to be released on payment of $ 245 in six months, and of $ 244.85 in twelve months, with interest on each sum from the date of the judgment; that on the 14th of January 1856, Parsons executed to the complainant, in order to indemnify him on account of his suretyship, a bill of sale of all his stock in trade, furniture and fixtures in a certain shop in Baltimore city, and all book-accounts or other choses in action belonging to him, the said Parsons, upon the terms and conditions therein mentioned, a copy of which is filed with the bill as an exhibit; that Parsons has made default in paying the judgment according to its terms, and the complainant has been compelled to pay the same, and has received no reimbursement therefor from Parsons, except the sum of about $ 110. The bill further charges, that at the time this bill of sale was executed, the property therein [**2]  embraced was worth (as complainant supposes) about $ 400, and the book-accounts, choses in action and other debts due Parsons, likewise mentioned therein, about $ 900; that for the last twelve or eighteen months, Parsons has become irregular in his habits and inattentive to his business, which is now greatly reduced; that the aforesaid stock in trade, fixtures, &c., has been so much reduced as not to be worth more than (as complainant supposes) $ 50; that for the last six or twelve months, Parsons has been, with all practicable speed and means, collecting the book-accounts and reducing the choses in action aforesaid into possession, without handing the same, or any part thereof, over to complainant; that the acts of said Parsons, in collecting the accounts and choses in action, and putting the proceeds into his own pocket, as above set forth, are in fraud of the complainant's rights; that under the terms of the aforesaid bill of sale, the complainant is entitled to a new bill of sale of all the goods and chattels, stock in trade, book-accounts and choses in action of which the said Parsons may now be possessed; that said Parsons is now, and for some time past has been, using his best [**3]  exertions to obtain the money for all said accounts, choses in action, &c., and is about to sell out the remnant of the aforesaid stock in trade, and is actually removing the same, with the fraudulent intent to appropriate the whole proceeds thereof to his own use, and thereby deprive the complainant of his rights and remedies under the bill of sale last mentioned, all of which is a gross fraud upon him; that said Parsons has no other property or effects than that mentioned in the bill of sale, and is utterly insolvent; that the whole of said property and effects, if obtained by the complainant, would not pay more than sixty or seventy per cent. of his claim, and that if Parsons knew that complainant was about to proceed against him, he would secrete said property and books, and collect the debts thereon due him at large discounts, so as the more entirely to perpetrate the fraud he now contemplates. Inasmuch, therefore, as the complainant is remediless in the premises at common law, and entitled to relief only in a court of equity, where matters of this and the like sort are properly cognizable, the bill prays for an answer under oath, for the appointment of a receiver to take charge [**4]  of the property, and for an injunction restraining Parsons from selling or in any manner disposing of any of the goods and chattels, stock in trade, book-accounts or choses in action aforesaid, and from collecting, receiving or assigning any of the book-accounts, choses in action, or other debts due him aforesaid.

The bill of sale or mortgage from Parsons to Hughes, filed with the bill, and dated the 14th of January 1856, recites, that "whereas said Hughes and Parsons did, on the 8th of October 1855, confess judgment to," &c., "for the sum of $ 489.85, as by reference to the judgment docket of the Court of Common Pleas will appear; and whereas the aforesaid sum of $ 489.85 was the individual debt of the said Parsons and the said Hughes the surety for the payment thereof; and whereas the said Parsons, in order to indemnify and save harmless him, the said Hughes, from and against all loss or damage that may happen to or befall him, by reason of his said suretyship or confession of the judgment aforesaid, doth hereby acknowledge himself bound unto the said Hughes in the penal sum of $ 500, to be paid in two equal instalments in twelve and eighteen months from this date." The deed [**5]  then, in consideration of the premises, and of one dollar, current money, proceeds to convey to Hughes, his executors, &c., "all stock in trade, furniture and fixtures, or other goods and chattels now in and about the house or shop at No. 119 Broadway, in said city, as well as all book-accounts now standing in the business books of the said Parsons, or other choses in action at present belonging to him. And the said Parsons, in order more effectually to secure the said Hughes against all loss in the manner aforesaid, doth hereby, for himself, his executors, administrators and assigns, covenant with the said Hughes, his executors, administrators and assigns, that he or they, upon being so requested, will give him or them a new bill of sale of and for all such goods and chattels, stock in trade, book-accounts and choses in action, as he or they may at the time be possessed of, or in any manner entitled to, similar in all its terms and conditions to these presents, so that this indenture shall or will give to the said Hughes a continual equitable lien upon the said goods and chattels, book-accounts and choses in action, for the purposes of indemnity as aforesaid. These presents are, however,  [**6]  made upon this condition, that if the said Parsons do pay the judgment aforesaid, and shall save harmless the said Hughes from all loss that may happen to or befall him, by reason of his having confessed said judgment, or become security as aforesaid, then this indenture becomes void, otherwise to remain in full force and virtue."

A copy of the judgment was also filed, as an exhibit, with the bill. The court (KREBS, J.,) granted the injunction as prayed, and the defendant, having filed his answer, entered a motion to dissolve the injunction, and afterwards appealed from the order granting it.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A Court of Equity will, upon a bill filed by the mortgagee, either before or after default made by the mortgagor, interfere by injunction to prevent waste or destruction, by the mortgagor in possession, of the mortgaged property, whether real or personal. 

COUNSEL:
Thomas J. Warrington and William J. Stone for the appellant:

1st. The bill discloses a case of a party claiming an indebtedness in virtue of a bill of sale or mortgage of personal property. It is evident that, as mortgagee, he was entitled to the possession of the property upon demand made, and had Parsons refused to deliver it, he could have recovered the stock in trade by replevin. That was his legal and sufficient remedy, for had he pursued it, the stock in trade, which is alleged in the bill to be worth more than the debt, could have been [**7]  recovered. And as to the book-accounts and choses in action, there was also a legal remedy by attachment. The law is clear, that an injunction will not be granted where there is any other sufficient remedy either at law or in equity. There is nothing in the relation of mortgagee and mortgagor to prevent an action at law, (2 Greenleaf's Rep., 173, Smith vs. Goodwin,) and in all such cases there is no relief in equity, and especially not by injunction.

2nd. But the allegations of the bill do not make a case for an injunction. In the case of personal property, the necessity must be imperative and extraordinary, to justify interference by injunction. 2 Story's Eq., secs. 26, 27. In view of the rulings in the cases of Uhl vs. Dillon, 10 Md. Rep., 500, and Warfield vs. Owens, 4 Gill, 382, this injunction should not have been granted. The allegations of the bill in Uhl vs. Dillon, were quite as strong and very much like those in the present case, and yet the injunction was refused.

L. M. Reynolds for the appellee:

In determining whether the order granting this injunction was properly or improperly passed, this court is confined to the bill alone, (10 Md. Rep., 418, McCann vs.  [**8]  Taylor,) and its allegations make a clear case for an injunction. In the case of Brown vs. Stewart, 1 Md. Ch. Dec., 87, the chancellor decided, that if a mortgagor in possession of personal property is committing waste or destruction, equity will restrain him by injunction; that because the mortgagee may take possession of the property, or recover it by an action of replevin, he is not, on this account, precluded from the right of having it protected in a Court of Equity, and that a mortgagee may pursue his remedy at law and in equity at the same time.  

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

OPINIONBY:
TUCK 

OPINION:

 [*5]  TUCK, J., delivered the opinion of this court.
This is an appeal from an order granting an injunction, and must be determined on the bill, without reference to the answer. McCann vs. Taylor, 10 Md. 418.
Upon carefully considering the averments of the bill, which on this hearing must be taken as true, we are of opinion that the order was properly granted. It is unnecessary to multiply authorities on the question of the court's power to interfere by injunction to prevent waste or destruction of property covered by mortgages. [**9]  It has been frequently exercised, and was recognized in Clagett vs. Salmon, 5 G. & J. 314, where the bill was filed before the mortgagee was entitled to proceed to recover the debt. The same principle applies after default made by the debtor, for the mortgagee is not bound to take possession of the property by process at law. He may elect to prosecute his remedy in equity, and the debtor ought not to complain of being restrained from impairing the security which is held by his creditor. The subject was before the late chancellor, 

 [*6]  in a case where real and personal property were both conveyed by mortgage, and the debtor was selling and misapplying the personalty. Brown vs. Stewart, 1 Md. Ch. Dec. 87. Concurring in the views there expressed, we are willing to rest our affirmance of the present order on the chancellor's opinion.
Order affirmed and cause remanded. 

15 of 18 DOCUMENTS 

JOSEPH KELLER vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 322; 1858 Md. LEXIS 30 

July 20, 1858, Decided 

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

In this case the appellant was indicted and convicted in the court below for a violation of the then existing license laws, and appealed from the judgment against him. After the argument of the case in this court, the act of 1858, ch. 414, was passed, repealing the laws under which the indictment was framed. This act not having been brought to the notice of the court until after the judgment was entered affirmed, which was done at the December term 1857, after the repealing law was passed, (11 Md. Rep., 525,) the appellant afterwards but during the same term, made a motion to correct this entry and to have the judgment reversed.  

DISPOSITION:
Motion granted and judgment reversed.  

HEADNOTES:

A party was indicted and convicted, and appealed from the judgment. After the case was argued in the Court of Appeals, the Legislature passed a law repealing the act under which the indictment was framed, but this law was not brought to the notice of the court until the judgment had been affirmed. Afterwards, but at the same term of the court, a motion was made to strike out the affirmance and enter a judgment of reversal. HELD:

That the question presented by this motion, must be disposed of as if the repealing act had been passed before the judgment was affirmed, and the motion must be granted.

A party cannot be convicted after the law under which he may be prosecuted has been repealed, though the offence may have been committed before the repeal, and the same principle applies where the law is repealed or expires pending an appeal or writ of error from the judgment of an inferior court.

An appellate court in disposing of an appeal or writ of error, must decide according to existing laws at the time of the final judgment.

The judgment in a criminal case cannot be considered as final and conclusive to every intent, notwithstanding an appeal or writ of error; execution of the sentence is not stayed if the State chooses to proceed on the judgment, but if the judgment is reversed, such reversal operates to discharge the prisoner from punishment.

In criminal cases where fines or penalties are imposed, an appeal will lie upon questions of law apparent on the record, and such questions sufficiently appear on the record, where the defence is presented in the court below by an agreed statement of facts,

Such agreed statements of facts, serve the same purposes and are governed by the same principles, and, by the practice in this State, have almost entirely taken the place of, special verdicts; like such verdicts their effect is to place the facts on the record as part thereof, and the court decides thereon as on demurrer.

The act of 1825, ch. 117, does not apply to demurrers and motions in arrest of judgment, nor to cases of agreed statements of facts.  

COUNSEL:
Charles F. Mayer for the motion:

The principle is well settled, that if a statute intervenes while a prosecution is pending and repeals the statute under which the prosecution is had, no judgment can be pronounced against the offender. This principle equally applies to a case where there has been a verdict of guilty, and a repeal before judgment as where the proceedings are open before verdict. Some question might arise, whether the judgment should be reversed,  [**2]  rendered on a penal statute where the repeal takes place after judgment, and pending the appeal or writ of error. There would seem to be no reason against the reversal, since the writ of error or appeal keeps the judgment in uncertainty, and prevents its being definitive or a thing consummate, and since punishment is as much a part of the proceedings under a penal statute, as the action on the indictment antecedent even to verdict, and to affirm a judgment is to pronounce a present decision, as to the present and actual law. If the law be repealed the judgment of affirmance falsifies the law, and declares that to be law which is not law any longer.

In 1 Cranch, 104, United States vs. Schooner Peggy, the court's opinion, in the last sentence of it, delivered by C. J. Marshall, concludes the point we are maintaining in declaring: "The court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." The judgment there of the circuit court was set aside, and on writ of error, in consequence of an intervening change of law (virtually a repeal)  [**3]  after the decree or judgment of the circuit court had been passed. Subsequent cases in 5th and 6th Cranch, 281, 329, looked, on deciding the same point, to the proceeding being by appeal and in admiralty and as making a new case in the Supreme Court, but, in the Peggy's case, the review was under a writ of error, and the principle settled there covers any case in the appellate tribunal no matter how carried thither. Thus, too, in 14 Eng. Law & Eq. Rep., 124, Regina vs. Denton, the court determines that where a law is repealed, it is, as to any penal procedure, (punishment or proceedings in the prosecution,) to be regarded as if it had never existed, quoad the action of the court adjudging in the case. Besides this, and in confirmation of the reasoning of the position, the benefit of which we claim, a repeal of the penal statute is a renunciation by the State of the penalty. So has the Supreme Court of the United States determined, in the case of The State of Maryland vs. The Balto. & Ohio Rail Road Co., 3 How., 534. Ch. J. Taney there says, that a repeal of an act is a remission of the penalty in the particular case of prosecution. See, too, 13 How., 429, Norris vs. Crocker. In this [**4]  case all penalty was thus removed by the State as against the appellant.

It is idle to cite authorities to show that a judgment appealed from or carried up under writ of error is not a definitive judgment, and, therefore, practically not a complete judgment, although it be not merely interlocutory in the technical sense. The case of a party is as much sub judice still, and merely, while in the appellate tribunal, as it was while trying or before verdict and judgment in the inferior court. A case too, it may be said, absolutely goes to our Court of Appeals, and is entirely in the possession of that court, since even execution may issue on an affirmed judgment from the Court of Appeals. The cases on this doctrine generally will be found in 1 Brittish Crim Law, sec. 103, and I may on this head cite 1 Binney, 601, Commonwealth vs. Duane; 1 Wm. Bl. Rep., 451, Miller's Case; 3 Burr., 1456, Rex vs. Justices of London; 11 Pick., 350, Commonwealth vs. Marshall; 3 Dallas, 378, Hollingsworth vs. Virginid; 4 Dallas, 372.

No counsel appeared for the State.  

JUDGES:
This motion was argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*325]  TUCK, J., delivered the opinion [**5]  of this court.
It appears that, on the last day of the session of 1858, the Legislature passed an act, "to regulate the issuing of licenses to ordinary keepers and traders," (ch. 414,) by which the acts under which this indictment was found and the appellant convicted in the court below, were repealed. This law had not been passed when the cause was argued, and was not brought to the notice of the court until after the judgment had been affirmed, when a motion was made, within the term, to correct the ruling of the court, and enter a judgment of reversal. The question, now submitted, must be disposed of as if the act of 1858 had been passed before the judgment was affirmed.
If the record is properly before us the motion must be granted. It is well settled, that a party cannot be convicted, after the law under which he may be prosecuted has been repealed, although the offence may have been committed before the repeal. Dwarris, 670. 1 Kent 465. State use of Wash. Co., vs. Balto. & Ohio Rail Road Co., 12 G. & J. 399. 

 [*326]  The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior [**6]  court. It has frequently been recognized in admiralty causes, where property was seized and condemned, on the ground that the repeal of the law before the decision in the court above removed the penalty, and that the court in disposing of the appeal or writ of error, must decide according to existing laws at the time of the final judgment. 1 Cranch, 103. 5 Cranch, 281. 6 Cranch, 203. 3 Peters, 57. Ch. J. Marshall states the doctrine generally, and not as applicable only to condemnations in admiralty. There seems to be no reason for saying, that it shall not govern in other cases of penalty or fine, when pending causes are not excepted in the repealing act. And we may consider that the Court of Appeals so regarded this doctrine, for in the case of State use of Washington County, vs. The Rail Road Company, 12 G. & J. 437, where the defendant claimed the benefit of an act of Assembly releasing a penalty, the court relied upon what was said in 5 Cranch 283, viz: "The court is therefore of opinion, that the cause is to be considered as if no sentence had been pronounced; and if no sentence [**7]  had been pronounced, it has been long settled on general principles, that after the expiration or repeal of a law no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute." The judgment in a criminal cause cannot be considered as final and conclusive to every intent, notwithstanding the removal of the record to a superior court. If this were so, there would be no use in taking the appeal or suing out a writ of error. To be sure it does not operate to stay the execution of the sentence, if the State chooses to proceed on the judgment; but, when decided in favor of the accused, the reversal will operate as far as possible for his relief. If he be undergoing punishment according to the sentence pronounced he will be discharged, as in the cases of Black, 2 Md. 376, and Cochrane, 6 Md. 400. And so if the law be repealed, pending the appeal or writ of error, the judgment will be reversed, because the decision must be in accordance with the 

 [*327]  law at the time of final judgment. And recently, in the case of The State  [**8]   use of Balto. City, vs. Norwood, et al., at this term, (Ante, 195,) this court recognized and adopted the language of Ch. J. Marshall, in 1 Cranch 110, to the effect, that, "if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." See, also, 3 Howard 534, where the Chief Justice said, that "the repeal of a law imposing a penalty is of itself a remission of the penalty."
We are next to inquire as to the appellant's standing in this court. The case was decided by the court below, on an agreement of facts. The objection on the part of the State, (see 11 Md. 529, 530,) is, that there should have been a demurrer or motion in arrest of judgment, and that the record should have been brought up by writ of error.
It was decided in Queen vs. The State, 5 H. & J. 232, that, in criminal cases imposing fines or penalties, an appeal will lie upon questions of law apparent on the record. Act of 1785, ch. 87, sec. 6. Rawlings vs. State, 1 Md. 127. As this record shows a judgment imposing a fine, the appeal will not be dismissed,  [**9]  if the case, was so presented in the court below as to place the appellant's defence upon the record. The indictment being good in law, there was no ground for a demurrer or motion in arrest of judgment.
If the defence, that the defendant sold lager beer of his own brewing, had been pleaded, and the State had demurred to the plea, the point would have appeared by the record. Instead of this mode of proceeding, however, the State and the accused made an agreement of facts, according to a practice which has obtained in this State for many years, by which the case was submitted to the court. The office of the court was, to declare the law upon the facts admitted. This proceeding, with us, has almost entirely taken the place of special verdicts, as being more convenient, yet serving the same purposes, and is governed by the same principles. Ev. Pr., 316. 2 H. & G. 118. Like special verdicts, the effect is to place the facts on the record, as part thereof, on which the court decides, "as in case of demurrer." Steph. Pl., 124, (Ed. of 1831.) U. States 

 [*328]  vs. Eliason, 16 Peters 291. Stimpson vs. Balto. & Susquehanna Rail Road Co.  [**10]  , 10 Howard 329. When an appeal is taken, the court above decides upon the law of the case, without being restrained by the act of 1825, ch. 117. As that act does not apply to demurrers and motions in arrest of judgment, and as agreed statements present the facts, as on demurrer, the act has never been considered as applicable to such cases. There have been many such cases in this court since the passage of the act, and no question ever made as to the power of the court to revise the judgments. 2 H. & G., 118. 1 G. & J. 390. 3 Do. 158. 6 Do. 259, and others. The same is the law in criminal prosecutions. In 1 Ch. Crim. Law 642, it is said: "the jury have a right, in all cases whatever, to find a special verdict by which the facts of the case are put on the record, and the law is submitted to the judges," and the same rules are to be observed, as in civil suits, in stating the facts. If, in civil proceedings, a different form has been generally adopted, for submitting the law to the court, why may not the same mode be resorted to in prosecutions? The considerations of convenience and facility of trial, apply to one as well as to the [**11]  other, and, we think, the same practice should be allowed in both classes of cases. We have no difficulty in saying, that the proceedings below placed the facts upon the record, as a part thereof, by which the law of the case must be determined, and, that being so, that the appeal lies under the act of 1785, ch. 87, sec. 6.
In answer to the argument on the part of the State, (11 Md. 527,) as to what was said in 1 Md. 127, of the case of Lancaster vs. The State, it may be observed, that that agreement was entered into in the Court of Appeals, and not in the court below, and was not part of the case as decided. It was a judgment on confession, without demurrer, or motion in arrest, or agreement of facts in the inferior court, and the question of law to be decided did not appear upon the record. That being so an appeal did not lie.
Motion granted and judgment reversed. 

16 of 18 DOCUMENTS 

JACOB MARKELL vs. GRAYSON EICHELBERGER, Trustee of GEO. J. FISCHER and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 78; 1858 Md. LEXIS 7 

June 2, 1858, Decided 

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

This appeal is taken from an order of the court below, (NELSON, J.,) overruling exceptions filed by the appellant to, and finally ratifying and confirming, the auditor's report, distributing the proceeds of certain mortgaged property sold under a decree of said court, by Eichelberger, as trustee. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

A mortgage was executed "to indemnify, secure and save harmless" M., as surety on a specified note given by the mortgagor to S., "from all losses by reason of his liability as security aforesaid." This note, after maturity, was placed in bank for collection, and the maker being unable to pay the whole, the bank agreed to, and did, discount a new note of the maker for the balance, with M. and another, as endorsers. At the time M. put his name to this new note, it was understood by him and the maker, that the money raised on it should be applied to pay the balance on the old note due S., which was done, and the old note paid. HELD:

1st. That the liability of M., on the new note, was a continuation of the same liability as that secured by the mortgage, and this mortgage is a subsisting security therefor, and is entitled to a preference over subsequent mortgages of the same property.

2nd. The mortgagor being insolvent, and the mortgaged property having been sold, under a decree in equity, and the proceeds brought into court, M. has the right to have them applied to this debt, though he has not paid the note to the bank.  

COUNSEL:
Samuel Tyler for the appellant:

1st. As the claim due the Smiths was closed by funds obtained, upon the security of Markell, from the bank, and the liability of Markell as security for the claim due, at first, to the Smiths, and then transferred to the bank, was not, by such transfer, exonerated, but only transferred, the mortgage to Markell remained as a security to indemnify him against any liability for his security in the note to the bank.

This point is fully established by the case of Chase vs. McDonald & Ridgely, 7 H. & J., 160. The deed, in that case, was given by Samuel Chase, the father, in 1809, to indemnify Ridgely, who was about to become the endorser of certain notes to the amount of [**2]  $ 10,000, to be drawn by S. Chase, the son, in favor of T. Chase, another son of the grantor, and to be first endorsed by T. Chase, and then by Ridgely, and to be discounted at the Union Bank of Maryland. The recital of the deed is explicit, that the sons "are about to obtain a loan of $ 10,000 from the Union Bank of Maryland," and that "Samuel Chase, the elder, hath agreed to secure the payment of said notes, and to indemnify the said Nicholas G. Ridgely by reason of any endorsement made by him of the notes of the said Samuel Chase, the younger, not exceeding the sum of $ 10,000," then the conveyance to be void. Ridgely did become endorser of notes to the amount of $ 10,000, discounted at the Union Bank. But, some years afterwards, the Union Bank being unwilling to permit the notes to be renewed any longer, notes with Ridgely as endorser, were discounted at the City Bank of Baltimore, and the proceeds applied to close the debt due at the Union Bank. The court held, that as the debt due at the Union Bank was closed by funds obtained from the City Bank, the mortgage from Chase to Ridgely remained as a security to indemnify Ridgely against any liability for his endorsement of the last [**3]  mentioned notes. This reason extends to the case now before this court. The claim to the Smiths was closed by funds obtained from the Farmers & Mechanics Bank, on Markell's security, because of Markell's liability for Fischer to the Smiths. The mortgage was given to indemnify against any loss by reason of that liability. The loss by the debt at the bank would certainly be by reason of that liability. It must be noted that Markell is indemnified against all and every loss, by reason not merely of his security, but by reason of his liability as security; extending the indemnity beyond the transaction in which Markell is primarily security to any transaction which may be the natural consequence of his security, in the ordinary course of business. The contingency on which loss might happen, that was in the minds of the mortgagor and mortgagee, was larger than the word security seemed to them to express. The word security might be confined to the original transaction, but the word liability rescues the intention from that narrow construction. Courts of equity must accommodate their rules of construction to the ordinary course of business. They must consider what are the ordinary consequences [**4]  likely to ensue, when they undertake to determine the liability of a security which the debtor intended to secure him against. Equity doctrine is not an arbitrary rule established a priori by the courts, to which human transactions must conform, but it is a rule which the transactions themselves dictate to the court, as the substantial justice between the parties. The relation of Markell to Fischer, and not of Fischer to the Smiths, is the proper point of view of this case. From this point of view, it is seen that the ordinary doctrine, that payment discharges the mortgage, does not apply to this case. The mortgage is not merely to secure the payment of the money to the Smiths, but to indemnify Markell against his liability. Unless, therefore, the money due the Smiths be paid in a way that relieved Markell from all liability incurred by his security for Fischer, the indemnity against that liability must continue. There is a radical difference between a stipulation to perform some specific act, as the payment of a sum of money intended to be by way of indemnity, and a general covenant to indemnify and save harmless. Fischer, in an action on his covenant, could not plead that he had [**5]  paid the sum of money due the Smiths. The proper plea would be, that Markell was not in any manner damnified by reason of his liability as security. The mortgage is a pledge of the property to the full extent of the covenant contained in the recital and proviso of the deed. A court of equity, in dealing with securities, is not confined by the narrow, legal doctrine of contract, but acts upon the more enlarged doctrine of natural justice. The whole power of substitution, so freely exercised by courts of equity, in favor of securities, has no foundation in contract, but rests solely upon the basis of natural justice. Surely, then, the equity between Markell and the subsequent mortgagees, will authorize this court to hold the mortgage responsible for the claim transferred to the bank, the liability in the original transaction being the reason of Markell's security in this. Will it be maintained that the liability of a security is so entirely confined to the original transaction that by no change or substitution whatever, can the guaranty against loss belonging to the security be extended to the substituted transaction? Such a decision would certainly be a revolt against the case of Chase [**6]  vs. Ridgely, and a recoil against the progressive doctrine of ages. It would be adopting a rule of construction narrower than the cammon sense and the substantial justice of the matter.

2nd. The partial payment by Fischer, and the procuring another security with Markell, did not extinguish Markell's liability, but only lessened it. A partial payment of the debt does not release a mortgage, (4 Kent, 162,) neither does the obtaining another security.

3rd. The act of Assembly of 1825, ch. 50, has no bearing on this case. That act intended to provide against tacking. 1 Gill, 424, Cole vs. Albers & Runge. 3 Md. Ch. Dec., 473, Young's Estate. A law that is grounded on a reason, obliges no further than the reason of it extends.

In reply to the 1st point of the appellees, it is insisted that the indemnity of Markell against liability is more comprehensive than that of Ridgely, in 7 H. & J., against endorsements. The note to the Smiths is referred to in the mortgage to Markell merely as descriptive; to the 2nd point, that the liability of Markell was transferred to the bank; the case of Brinckerhoff vs. Lansing, favors the appellant, and not the appellee, if it has any bearing [**7]  on the question in this case; to the 3rd point, that Markell has such an interest in the fund as entitles him to an appeal. The fact that Markell has not paid, will not authorize the court to deprive him of his indemnity. The fund might be the only means by which he could pay. If this court decides that the mortgage indemnifies Markell against his liability to the bank, such proceedings can be had in the court below as to apply the fund to Markell's indemnity. And to the 4th point, that the question between the classes of creditors is dependent on the question between Markell and Fischer.

Grayson Eichelberger for the appellees:

1st. The mortgage upon which the question in this case arises, was given on the 26th of November 1850, to indemnify Markell against his liability as security for Fischer, on the note to the Smiths for $ 535. This note was not paid by Markell, the surety, but by Fischer, the principal, to whom, on its payment, it was delivered. Upon what principle, then, can the note of the bank, against Fischer, Markell and Bevan, be substituted for the Smith note, recited in the mortgage? It was not a renewal of the Smith note, for the facts show that the Smith note [**8]  was not discounted by the bank, and, on maturity, renewed by the note in question, but was left with the bank for collection, and that Fischer, the principal, not being able to meet it at maturity, wholly, with his then means, contracted a new debt, with new security, and with a new creditor, for the purpose of paying his debt to the Smiths. This case is not within the principle of Chase vs. McDonald & Ridgely, 7 H. & J., 161. That was the case of a mortgage to indemnify Ridgely, the security, against "any endorsement" of the notes of Chase, to an amount not exceeding $ 10,000, and it was properly held, that, under such a mortgage, Ridgely was protected thereby, so long as his liability for Chase, upon any note springing out of, or connected with, the original transaction, continued. That, moreover, was a mortgage given to secure him against a general endorsement to a specified amount, to be entered into thereafter, on notes which were to be renewed from time to time; the mortgage in this case was to indemnify Markell against any existing liability on a specified note.

2nd. The Smith note was not transferred to the bank, as contended for by the appellant's counsel, but, in the [**9]  case of the note in question, which is sought to be introduced into the mortgage, there is a new creditor, a new debt, and a new security, thus bringing the case within the principle decided, by necessary inference, by Chancellor Kent, in Brinckerhoff vs. Lansing, 4 Johns. Ch. Rep., 75, 76.

3rd. Conceding, for the sake of the argument, that the view presented by the appellant is correct, still he has not put himself in a position to claim the benefit of it. He has never paid the note in bank, nor any part of it, and, until he had done so, could not have filed a bill for sale or foreclosure, nor has he, until then, such an interest as authorizes him to appeal. The note in question is still held and owned by the bank, and they have taken no appeal.

4th. This is not a question between Markell and Fischer, but between two different classes of the creditors of Fischer.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*84]  BARTOL, J., delivered the opinion of this court.
The facts in this case are very fully set out in the agreement of the solicitors, appearing in the record, and may be briefly stated as follows:
George J. Fischer was indebted [**10]  to Corilla H. Smith and Philemon M. Smith in the sum of $ 535, on his promissory note, dated the 12th day of March 1850, and Jacob Markell was liable as his surety on said note. Fischer, in order "to indemnify, secure and save harmless said Markell from all loss by reason of his liability as security aforesaid," on the 26th of November 1850, executed to said Markell a mortgage, with the condition that the said Fischer should pay the aforesaid sum of money, with legal interest thereon, and should "well and truly indemnify and save harmless the said Markell from all and every loss by reason of his liability as security as hereinbefore recited," which mortgage was duly executed and recorded; after which the said Fischer executed another mortgage, conveying the same property to other persons, for the purpose of securing other creditors and sureties.
The note due Corilla H. and Philemon M. Smith was placed by the payees, after its maturity, in the Farmers & Mechanics Bank of Frederick county, for collection, with instructions to institute suit thereon, if not paid by a certain day. The cashier then told Fischer, if he would pay a part of the sum due on said note, the bank would discount [**11]  a note for him, to enable him to pay the balance. Whereupon the said Markell, together with one Joseph Bevan, united with said Fischer in giving a note, dated November 8th, 1854, for $ 475, payable, in six months, to Thomas Morgan, cashier, or order, and the money raised by said note, together with the sum paid by Fischer, was applied to the payment of the note due C. H. and P. M. Smith. At the time Markell put his name on said note for $ 475, it was understood by him and Fischer, that the 

 [*85]  money to be raised upon it, was to be applied to the payment of the balance due on the note to the Smiths. The name of Bevan, thereon, was procured by Fischer, because the bank required another security or drawer; and the same remains unpaid, and is held by the bank. It is also admitted that Fischer is insolvent, and was generally known to be very heavily indebted at the time the said note was discounted.
The mortgaged property was sold under a decree of the Circuit Court for Frederick County, sitting in equity, passed upon a bill filed by prior incumbrancers, and the fund arising from the sale was brought into court. The cause being referred to the auditor, he stated an account, applying [**12]  the proceeds of sale to the payment of the claims of prior mortgagees, and to parties claiming under the subsequent mortgage, to the exclusion of the said note for $ 475, held by the bank, on which said Markell is surety. And the said Markell filed exceptions to the auditor's report, claiming that he is entitled, under the mortgage of the 26th of November 1850, to have the said note for $ 475 paid out of the fund. The Circuit Court, by its order of the 25th of September 1857, overruled the exceptions, and ratified the auditor's account, and from that order this appeal is prosecuted.
It is admitted that the fund is insufficient to pay all the mortgage claims, and that the claims Nos. 11 and 12, allowed in the audit, are claims secured by the last mortgage, which was executed after that of the 26th of November 1850, had been executed and recorded.
We think this case is within the principle recognized and decided by the Court of Appeals, in the case of Chase & M'Donald, vs. Ridgely, 7 H. & J. 160. There the mortgage was given to indemnify Ridgely as surety on account of his prospective liability as endorser on certain notes to be given to the Union Bank; the notes were given,  [**13]  but were afterwards paid with funds obtained from the City Bank, upon notes endorsed by the mortgagee as surety. The court held, that the liability of the surety on the notes given to the City Bank, was covered by the mortgage; it was treated as a continuation of the same liability on the part of the surety, although the 

 [*86]  notes originally given to the Union Bank, after being renewed from time to time, as specified in the mortgage, had been paid and surrendered. The court considered that the debt for which the surety was liable, remained unpaid. It was only transferred from one bank to another, and the indemnity secured to the endorser under the mortgage, remained.
That is a stronger case, in support of the appellant's views, than the one before us. Here the original note was held by the Farmers & Mechanics Bank of Frederick county, for collection. The bank consented to accept payment of a part, and to take a new note from Fischer for the balance. On the new note thus given for a part of the original debt, Markell, the mortgagee, remained liable as endorser and surety. We see no good reason why the mortgage should not stand as security to indemnify him from that liability.  [**14]  
If the note for $ 475 had been given to the Smiths as a renewal in part of the first, there could be no doubt that Markell's liability upon it would be covered by the mortgage, although no provision is made in the mortgage for renewals; the case of Brinckerhoff vs. Lansing, 4 Johns. Ch. Rep. 65, cited by the appellee's counsel, establishes that position. Then what difference is there in principle growing out of the fact that the bank, which held the note as agent of the payees, made the arrangement whereby $ 475 of the debt remained unpaid, and Markell's liability to that extent was continued? We are of opinion that the mortgage to the appellant, of the 26th of November 1850, is a subsisting security to indemnify him for his liability on the note for $ 475, and the fund should be applied to the payment thereof, after satisfying prior liens.
The question next arises, is he in a position to claim the benefit of it, not having paid the note to the bank? In this case the principal debtor is insolvent, and the funds pledged by the mortgage to indemnify the surety are in court; it would, in our opinion, be inequitable to deny to the surety the right to have them applied [**15]  to the payment of the debt. To use the language employed by the Chancellor, in Chase v. McDonald & Ridgely, "If the mortgage had been given to the bank, and not to Markell, equity would give him the benefit of it, 

 [*87]  and surely if a court of equity would give him the benefit of the mortgage given to the bank, it will not deprive him of one given to himself." 5 G. & J. 314.
In order that the auditor's account may be corrected, and further proceedings had, in conformity with the opinion of this court, the cause will be remanded.
Order reversed and cause remanded. 

17 of 18 DOCUMENTS 

JOSIAH HUGHES vs. SAMUEL JACKSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 450; 1858 Md. LEXIS 37 

June 15, 1858, Decided 

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

Trespass q. c. f. for breaking and entering the plaintiff's messuage or dwelling-house, and taking and carrying away his children, brought on the 10th of March 1851, by the appellee against the appellant and another, who died before trial. In the writ, declaration and proceedings the plaintiff is described as a "negro," and in the original nar, which was in trespass vi et armis for an assault and battery, the defendants are described as "free negroes."

The case, after plea of non cul and issue, was continued from term to term till October term 1853, when it was continued under an agreement "to be struck off at the next April term of this court, if not tried, and judgment to defendant for costs." It was then continued, by regular continuances, till July 1854, when the plaintiff asked and obtained leave to amend his declaration. The case was then continued till January 1855, when the amended nar was filed, charging the defendants with breaking and entering the plaintiff's messuage or dwelling-house, and taking and carrying away, and converting to their use his property, to wit, his two children of the value of $ 1000. The [**2]  case was then continued till the 22nd of April 1856, when the defendants pleaded non cul to the amended declaration, upon which issue was joined. The record then shows that, on the 24th of the same month, after the jury was sworn to try the case, the defendants made a motion to dismiss, which was overruled, and a verdict rendered in favor of the plaintiff, on the 26th of the same month, for $ 750 damages.

On the day the verdict was rendered, the defendant moved for a new trial, and on the third day thereafter filed as reasons therefor that the verdict was against law, evidence, and the instructions of the court, and that the damages were excessive. On the fourth day after the verdict, the defendant also moved in arrest of judgment, "for reasons apparent on the face of the papers and pleadings." Afterwards, on the 13th of June, the defendant filed an additional reason, accompanied by several affidavits, in support of his motion for a new trial, upon the ground of newly discovered evidence.

The court (BRICE J. GOLDSBOROUGH, Special Judge,) overruled both motions, and filed an opinion stating that "in over ruling the motion for a new trial, the court refused to consider the [**3]  reasons filed as of the 13th of June 1856, because they were not filed within the time required by the 22nd rule of said court, which is as follows." The rule is then set out in the opinion of the court below as stated in the opinion of this court. From this ruling upon the reasons aforesaid, and from the decision of the court upon the motion in arrest, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A case was continued under an agreement that it should be struck off at the next term, if not tried, and judgment for the defendant for costs. Subsequently to the next term, the plaintiff had leave to amend, and the defendant pleaded to the amended nar, and the case was carried on to judgment, without notice taken of the agreement. HELD:

That the proceedings subsequent to the agreement constituted a waiver, with the concurrence of the court, of all advantage conferred upon the defendant by the agreement.

Where the court below refused to consider reasons for a new trial because not filed within the time required by the rules of court, such decision cannot be reviewed on appeal.

Where a court has established rules for its government, and that of suitors, there exists no discretion in the court to dispense at pleasure with such rules, or to innovate on established practice.

There are but two cases in which, in a court of law in this State, a negro suffers a disqualification because of the presumption arising from his color, the one where he is offered as a witness in a case where a white person is interested, the other where the question is freedom vel non.

A free negro suing in our courts is sufficiently described by the word "negro," for it notifies the adversary party of the fact of color, and affords him an opportunity of pleading the disability of slavery, if it exists.  

COUNSEL:
Elias Griswold for the appellant:

1st. A court has no power to allow a plaintiff to amend his nar and declare anew in direct violation of an agreement entered on the record at a previous term, "that the case should be struck off," if not tried at a term intermediate the agreement and the motion to amend, and a subsequent pleading of "not guilty" to the amended nar, does not cure this irregularity. The record shows that a motion was made to dismiss the case, and such a motion is in accordance with the act of 1825, ch. 117, (9 Gill, 248, Cushwa vs. Cushwa; Ibid., 269, Newcomer vs. Keedy,) and as the overruling of this motion was not a final decision of the case, an appeal could not then have been taken. 7 Gill, 366, Welch vs. Davis. Ibid., 33, Wheeler vs. The State. 7 G. & J., 109,  [**4]  Boteler vs. The State. 3 Gill, 246, Baldwin, use of Owens, vs. Wright, et al. 3 Md. Rep., 326, Bridendolph vs. Zellers.

2nd. The courts had no power to grant amendments from one form of action to another, till the act of 1852, ch. 177, which does not apply to any case then commenced. This irregularity of amending from nar vi et armis to q. c. f., could not be taken advantage of by demurrer, for the new nar, unlike the first, was in accordance with the writ, and not, therefore, demurrable. The error could only be taken advantage of by motion to dismiss, and this motion was available after as well as before the plea of non cul, because the right to amend is in the discretion of the court, and the changing from one form of action to another, was in accordance with the writ. The defendant must plead, and avail himself of the irregularity in granting the amendment contrary to solemn agreement, and the irregularity in amending from one form of action to another, by his motion to dismiss, and by motion in arrest of judgment, which goes to the whole record. 4 G. & J., 416, Charlotte Hall School vs. Greenwell. Ev. Pr., 332.

3rd. A slave having no civil rights, cannot, in Maryland,  [**5]  sue or be sued in an action of trespass q. c. f., (4 H. & J., 547, Wicks vs. Chew; 5 H. & J., 190, Hall vs. Mullin; 9 G. & J., 19, Bland vs. Negro Dowling; 4 Gill, 249, Peters vs. Van Lear;) and the court must presume one described in an original writ and all the proceedings in a case as a "negro," to be a slave. 6 G. & J., 136, Burke vs. Negro Joe. 4 H. & McH., 295, Mahoney vs. Ashton. If he was described as a "free negro," a plea to the merits would acquiesce in his description of himself, and throw upon the defendant the burthen of denying his freedom and right, but in the absence of any description except "negro," he is presumed to be a slave, and the whole action and proceedings are null and void. The distinction attempted to be set up, that a negro is presumed to be a slave only when he is held and claimed to be such, or only in petitions for freedom, is inconsistent with the law of nations, our statute law, and the decisions of our courts, as well as the position of the race in the domestic relation recognised in slave States. The necessary corrollary from the position is, that negroes are presumed to be free; i. e., have civil rights, except when they are held and claimed as [**6]  slaves, or except in petitions for freedom. If this be so, what will you do with the 22nd sec. of the act of 1715, ch. 44, which declares "that all negroes and other slaves already imported or hereafter to be imported into this province, and all children now born or hereafter to be born of such negroes and slaves, shall be slaves during their natural life?" What will you do with the principles asserted in the case of Anderson vs. Garrett, 9 Gill, 128, where the negro, Rebecca, continually resided in Baltimore, with her children, for eighteen years, reputed as a free woman, and acting as such, making contracts, &c., and yet the court says, that negroes going at large and acting as free for any length of time, will not per se be a sufficient foundation to presume a deed? Where and what was the presumption in their case all the time they acted as free? Was it in abeyance, or did not the presumption of slavery arise till the master claimed them? Suppose Rebecca had brought suit as a "negro," not alleging her freedom, during these eighteen years, against a third party, could not the defendant have avoided the suit by allegation and proof of her slavery, without any holding and claim set [**7]  up by the master? Then the presumption or the fact of slavery does not depend on the holding and claim of the master. But the defendant need not allege or prove slavery. The presumption and the fact is, she is a slave as "all negroes and other slaves," and their children by statute are, and the going at large and acting in all respects as free, and reputed as free, does not help them. If she had sued as "free negro," pleading to her nar might admit her description of herself, though it has been decided in Maryland that suing negroes, treating them as if they had civil rights, does not admit their freedom, or, at least, their being made parties does not prevent their being sold as slaves. 7 G. & J., 96, Allein vs. Sharp. The reverse would certainly hold that pleading to their complaints, would not admit their freedom or give them civil rights. Further, if the doctrine holds that negroes are presumed free, except when held and claimed as slaves, or in petitions for freedom, what will you do with the law as elucidated in this same case of Anderson vs. Garrett, that in Maryland the law recognises but two modes of manumission, by "deed" and by "will" duly executed? Will you presume such [**8]  deeds and wills to exist, without their production? Sometimes--but when? Only when there is parol proof of twenty years or upwards going at large, with pregnant circumstances otherwise of freedom. But going at large, acting as free, reputed as free, abandonment by master, are no sufficient foundation for such a presumption, much less, in the absence of all proof of freedom, will the suing as a negro raise a presumption of freedom. Besides all this, the presumption that they are free, except when held and claimed as slaves, or in petitions for freedom, raises an exceptional rule very unjust to them, and in favor of the master. When they most need the presumption it is gone. The only just and true rule is to regard them as nature and revealed religion, and our laws, regard them at all times, and as we regard children before the age of twenty-one, as having no civil rights, dependent, needing protection, guidance and a master. And until, in the one case, the age of twenty-one is reached, and in the other, until by deed or will they are manumitted, the law justly and humanely regards them, and presumes them to be what they are, children and slaves. The law does not commit the folly and [**9]  injustice of presuming negroes free, except when the presumption is some benefit to them in petitions for freedom. Justice, the institution of slavery, or the master, asks no such presumption when the right of the master is asserted, unless the presumption rests on the broad and proper principle that they are always considered slaves by their natures, their capabilities, their position among their superiors, by the law of the land, and by divine arrangement and revealed law, their unfitness for civil rights, their need of pupilage, protection and guidance.

4th. It is no doubt good law that a defendant, before he can avail himself of the disability of a plaintiff to sue, must do so by plea in abatement. This is so when a party has any status as a person or a citizen, not where the presumption of law is, that they have no civil rights. It becomes a question of jurisdiction, and want of jurisdiction may appear in the record without any plea in abatement. This is ably elucidated in the opinion of Chief Justice Taney in the Dred Scott case. Besides, the right to sue must appear affirmatively, but in this case the term negro makes the contrary appear. This view is clearly held in the [**10]  case most relied on by the appellee, 5 H. & J., 130, Shivers vs. Wilson, where the court say, while recognizing the doctrine that a defendant must avail himself of the disability of a plaintiff to sue by plea in abatement, "if the act of 1795, ch. 56," (of attachments,) "comprehends the case at bar, no exceptions to the plaintiff's disability was available, except by plea in abatement; if, on the contrary, that act extends not to the case, the plaintiff had no right to recover, and the decision against him was correct." So here, if slaves, negroes, those presumed to be slaves, are comprehended among those having a right to sue in this State, no exception to their disability is available, except by plea in abatement. If, on the contrary, no law extends to them civil rights, the plaintiff in this case had no right to sue. For these reasons our motion to dismiss should have prevailed.

5th. The discretion vested in the courts to grant new trials, is not a capricious, but a sound, legal discretion, to the proper exercise of which the party claiming it is entitled, and from which he cannot be properly debarred by any rule that is a mere creature of the court. This appeal, in so far [**11]  as it relates to this point, is not from the refusal to grant a new trial, but from the legal effect and application of the rule of the court below, and this is a proper ground of appeal. 11 G. & J., 92, Dunbar vs. Conway. Though there is no doubt courts are bound by their own rules, and when violated to the injury of parties, a remedy exists by appeal, yet where no injury would result, they may be waived, in the discretion of the court. The rule in question, moreover, carried to the extent of refusing to consider an additional reason filed for a new trial before the argument of the motion, because not filed within the four days, is inconsistent with the due exercise of the discretion vested in courts to grant new trials, and subverts the ends of justice. In the case of Union Bank vs. Ridgely, 1 H. & G., 404, the question being, whether a plea of non est factum could be received after a plea of general performance, directly in the teeth of a rule of court declaring "that no incompatible plea shall be received," the court citing the act of 1809, ch. 153, says: "The discretion vested in the courts by that act is not a capricious, but a sound, legal discretion to the proper exercise of [**12]  which the party claiming it is entitled, and from which he cannot be debarred by any rule which is the mere creature of the court." The discretion to grant a new trial, although not statutory, in no respect differs in character from that given by this act. It is a power, the offspring of the inherent authority of the courts; a discretion, but nevertheless a sound, legal discretion. And although a court may, for convenience, or to prevent vexatious delay, order that such motions and the reasons therefor shall be filed by a certain day, yet such rule, the mere creature of the court, cannot override the great ends of justice, and debar a party from the full exercise of the sound, legal discretion of the court upon all the reasons filed before argument, when the motion was in time. Some of the reasons being filed in time, and the additional reasons appearing from the records and affidavits not to have been known to the party at the time of filing the first, such a narrow construction is without warrant, even of the language of the rule, much more inconsistent with the due exercise of the court's discretion, and subversive of justice and a fair trial of the merits of the case. In Carroll [**13]  vs. Barber, 7 H. & J., 454, where the application was alone to relax a rule of court, and not involving a construction of the rule, the Court of Appeals refused to relax but upon the grounds, 1st, that the proceeding appealed from was interlocutory and not final, and 2nd, that no just cause was shown. The language of the court clearly evinces that had the appeal had merits, they would have reviewed it differently. In the case under argument the circumstances are shown, by proof, why the reasons were not sooner filed, and the ends of justice require a relaxation of the rule, if indeed its language compasses at all the exclusion of any additional reasons. The case of Wall vs Wall, 2 H. & G., 79, affirms the right of appeal in this case, and the decision there that the plea would not be received be cause not in by the rule day, is not against us here, because in that case no plea was in in time; and it was a plea of limitations not to the merits, and not amendable. Had any plea been in in time, which was to the merits and amendable, it must have stood, and might have been withdrawn and a new plea filed. Here the motion and some of the reasons were in time, and any additional reasons before [**14]  argument are not excluded by the terms of the rule. In Gist vs. Drakely, 2 Gill, 330, the court, in deciding that the court below had a right to enforce its own rule excluding testimony after questions of law were raised, put that decision upon the ground that it did not appear that the testimony was out of the reach of the defendant, or was afterwards discovered. Here this meritorious ground appears, and also the cause why the additional reasons were not filed sooner. The court below seemed to think it had no discretion to dispense with the rule, but the case cited shows that it had that discretion.

6th. Upon the motion in arrest of judgment, all the objections apparent in the record avail to reverse the court below, and the refusal to arrest is the subject of appeal. On such appeals the appellate court will look to the whole record, notwithstanding the act of 1825, ch. 117. 4 G. & J., 416, Charlotte Hall School vs. Greenwell. Ev. Pr., 332.

James Wallace and Chas. F. Goldsborough for the appellee:

1st. It was not necessary to aver in the declaration that the appellee was a "free negro." The law of Maryland does not presume under all circumstances that a negro is a slave.  [**15]  In all cases where he is held and claimed as a slave, and in all petitions for freedom the courts have decided, that he is presumed to be a slave, and the onus probandi is upon him to make out his freedom, as in the case of Burke vs. Negro Joe, 6 G. & J., 141, and Mahony vs. Ashton, 4 H. & McH., 305, but the courts have never decided that in other cases all negroes should be regarded as slaves. The opinion, that all negroes held and claimed as slaves were such, was founded upon the acts of 1663, ch. 30, and 1715, ch. 44, declaring that all negro and other slaves, imported or to be imported, and their children should be slaves durante vita, but those acts especially that of 1715, does not declare all negroes free at that time or before, nor their children slaves. It says, all negroes and other slaves, now imported or hereafter to be imported, &c. It was not the design to make and declare all negroes, whether free or otherwise, then in the State, slaves, but simply that all negro slaves, and other slaves, should be regarded as slaves for life. This will appear by reference to the 5th and 26th sections, where free negroes are especially recognised. Previous to this act an idea prevailed,  [**16]  that baptizing worked a manumission, as appears by the 23rd section, and it was to remove any doubts upon the subject that the act was passed. The first decision upon the point after the passage of the act of 1715, was the case of Mahoney vs. Ashton, where the court say, the words of the statute do not operate to make those slaves who were free at the time of the passage of the act, but simply that all negroes held as slaves were such, and cast the onus probandi upon such as petitioned for their freedom. This doctrine was not questioned until the decision in the case of Burke vs. Negro Joe. In that case the court say: "a negro in this State is presumed to be a slave, and on an application for freedom must prove he is descended from a free ancestor, or that he has been manumitted by deed or will." When carefully examined, this decision will not be found to be in conflict with the case of Mahoney vs. Ashton, or the prevailing opinion of the profession since that date. The court say, a negro in this State is presumed to be a slave, &c. So he is, all admit, in cases where he is held and claimed as a slave, or as in such a case as was then before the court, but the court say no more; they [**17]  do not decide that he is presumed to be a slave in all cases and under all circumstances. Negroes going at large and acting as free, are regarded as free men, and presumed to be such until claimed as the property of some one. Such was the opinion and common law of the State before the aforesaid acts of Assembly. In certain cases they voted, bore arms, gave evidence in courts, and performed other acts now confined to the white man. They are now restrained from voting, bearing arms, and giving evidence, by statutes of 1717, ch. 13, 1846, ch. 27, 1783, ch. 23, 1796, ch. 67, sec. 5, but the presumptions are the same as before these acts. The various cases cited by the appellant, are not in conflict with this position. They were all cases where the parties were claimed as the property of some one.

2nd. Has a negro any status as a person or citizen, and can he sue in the courts of this State? If he be a slave he can only sue for his freedom: he has no other right to appear in court: he can have no property to defend or wrong to redress. If he be free he is still not a citizen nor is he an alien. He occupies an anomalous position, having more rights than a stranger, yet not the same [**18]  as an heir. He can sue and be sued in our courts, hold property and enjoy the fullest protection of our laws. In the Dred Scott case, the Supreme Court did not decide that a negro from his color was presumed to be a slave, but that no one who was of African descent could be a citizen of the United States, and sue in the United States' courts. He might still be a citizen of a State, and as such a free man, but still not entitled to reap the benefits of citizenship of the United States. No point in that case conflicts with the position of the appellee.

3rd. But if the argument of the appellant be true, that all negroes are presumed to be slaves, and as such are incompetent to sue, unless it be alleged that they are free, the appellee insists, that it is now too late to rely upon it. The objection cannot be sustained upon a motion in arrest of judgment. The defendant should have pleaded the disability to sue in abatement. The court below being one of general jurisdiction, the personal disability should have been taken advantage of in that manner; it can be done in no other way. 5 H. & J., 130, Shivers vs. Wilson. The defendant, however, never denied the ability of the plaintiff,  [**19]  either by any pleading or by evidence adduced on the trial. He has by his proceedings admitted his competency, and it is now too late to object: he is estopped. The description of the plaintiff is nothing more than ambiguous, and if the court can be asked to presume that the term "negro" implies a slave, and disqualifies the plaintiff from bringing or sustaining his action, certainly after verdict the plaintiff can ask the court to presume, that the defendant admitted his competency, or that every thing was proven on the trial, that was necessary to make the case out fully and completely. 5 H. & J., 130. 7 Gill, 211, Patterson vs. Crookshanks. 4 G. & J., 418, Charlotte Hall School vs. Greenwell. 1 Gill, 165, Baden, et al., vs. State, use of Clark. If the averment was defective and insufficient, and the defendant pleads to it and goes to trial, and the verdict be against him, he cannot avail himself of the defect, for it will be cured, and every legal intendment will be made to sustain the verdict. 3 H. & J., 383, Walsh vs. Gilmor. If the averment that the plaintiff is a negro, be ambiguous and uncertain whether he was a free man or a slave, the defect or ambiguity has been cured by [**20]  verdict, and the court should presume, that the ambiguity and uncertainty was removed at the trial, and proof necessary to sustain the issues was produced, and sustain the verdict by every fair legal intendment. 11 G. & J., 472, Ragan vs. Gaither.

4th. Though there was an agreement that the case should be struck off if not tried at a certain time, yet when the time arrived no motion was made to strike the case from the docket, nor an application for judgment of non-suit, but the defendant permitted the plaintiff to amend his nar, and consented to a continuance of the cause from term to term, and then knowingly and willingly without objection, pleaded to the amended nar long after the agreement expired. These proceedings, and joining issue and proceeding to trial, abrogated the agreement, and the court below was justified in presuming it had been rescinded or had been waived by the defendant. What else could be inferred from this strange conduct? If he intended to insist upon the contract, why did he not do it when the time arrived? Why did he plead? Why did he swear a jury? After the jury were sworn, it appears that he made a motion to dismiss the case, but the record does not [**21]  inform the court upon what ground the motion was based, whether for the violation of the agreement or for some other cause. If such laches were tolerated, great wrong would be perpetrated, and parties involved unnecessarily in large bills of costs, in bringing a cause to trial to be surprised by the revival of an old agreement that had long been abandoned by both parties. The agreement could have no more binding effect than a rule of court, and if the party failed to avail himself of the benefit of the rule, but suffered the other party after the term limited to file his amended nar, and then pleaded to it and went to trial, it would clearly be considered too late to enforce the rule, the court would consider that he had waived the rule. So we think in the case of an agreement, and that the court below was right in overruling the objection.

5th. In this case there was no amendment from one cause of action to another, as the appellant has argued. The writ was issued in trespass quare clausum fregit. The original nar set forth a case of trespass vi et armis. The error was perceived, and, upon application, the court permitted the plaintiff to amend, and the amended nar was filed,  [**22]  in accordance with the writ, for a trespass quare clausum fregit. So it is manifest there was no amendment from one class of action to another, and no force in this objection of the appellant.

6th. The court did not err in refusing a new trial upon any of the grounds stated by the appellant, and the refusal to grant this motion is not a ground of appeal. The whole matter is left to the sound discretion of the nisi prius court. 5 H. & J., 174, Anderson vs. The State. 2 H. & G., 79, Wall vs. Wall. Not only is the whole subject of new trials left to the discretion of the courts, but they are authorised to enact rules to govern the practice in such cases, and such rules are, while in force, a law unto the courts as well as suitors, and if the appellant failed to file his reasons within the time limited by the rule in question, the court was bound to exclude them, unless from peculiar circumstances it considered it proper to relax the rule, and the propriety of relaxing or not is left to the sound discretion of the court. But had the court relaxed the rule and considered the additional reason, it would not have been justified in granting a new trial, because no sufficient case was [**23]  presented.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*462]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before this court on an appeal from the decision of the circuit court overruling a motion in arrest of judgment. The principal question which underlies the case is, whether a negro can maintain an action in this State, without first averring in his pleadings, and establishing by proof, his freedom; it being contended, that the presumption of slavery arising from color, applies in every case, and is not confined to those originating in a petition for freedom. There are other matters alluded to and insisted upon by the counsel for the appellant, but they are of minor importance. The first is, that the amended declaration does not conform to the writ. An examination of the pleadings will show this to be simply error in point of fact. It is true, however, that the declaration which was filed in the first instance did not agree with the writ, but this oversight was corrected by filing another declaration to which the defendant pleaded, and on which issue was joined and the case was tried. The writ was issued [**24]  on the 10th day of March 1851; on the 18th day of October 1853, (there having been continuances,) the following agreement was entered into and made a part of the record:--"Continued upon the following agreement, to be struck off at the next April term of this court if not tried, and judgment to defendants for costs." Subsequently the plaintiff had leave to amend, and did amend his declaration, and to this amended declaration the defendant pleaded, and the case was carried on to judgment, without any notice being taken of the agreement to which we have referred. 

 [*463]  This we consider a waiver, with the concurrence of the court, of all advantage conferred upon the defendant by the agreement. Had this not been the case the judgment for costs would have been entered. The subsequent proceedings are only reconcilable on the hypothesis of a waiver of the agreement. But, inasmuch as a motion in arrest of judgment brings up the whole record, it is contended, that the court ought to have granted a new trial. The court overruled, as its opinion shows, the motion for a new trial, and refused to consider the reasons filed as of the 13th of June 1856, because these reasons were not filed [**25]  within the time specified by the rules of court. The 22nd rule of the court is as follows: "Ordered, that all motions in arrest of judgment and for a new trial shall be made, and reasons filed within four days next after trial, if the court shall continue so long, if not then, during the sitting of the court." Where a court has established rules for its government, and that of suitors, there exists no discretion in the court to dispense at pleasure with their rules, or to innovate on established practice. Wall's Ex'rs, vs. Wall, 2 H. & G. 79. Benson vs. Davis, 6 H. & J. 272. Abercrombie vs. Riddle, 3 Md. Ch. Dec. 320. This being so, then the appellant has nothing to complain of, or which this court can correct on this appeal, and as a consequence, the judgment must be affirmed. But the question to which we adverted in the commencement of this opinion, and which arises on the motion in arrest, is one of great practical importance, and we will decide it so as to remove all doubt in regard to it for the future. We know of but two cases in which, in a court of law in this State, a negro suffers a disqualification because of the presumption [**26]  arising from his color. The one is, where he is adduced as a witness in a case in which any white person is interested. Our act of Assembly of 1846, ch. 27, renders him incompetent as a witness in any case in which a white person is interested; the old act of 1717, ch 13, confined it to cases in which a christian white person was concerned. The other case is, where the question is freedom vel non; there his color raises a presumption against him, and casts upon him the onus of proof of his freedom. From the earliest history of the colony, free negroes 

 [*464]  have been allowed to sue in our courts and to hold property, both real and personal, and at one time, they having the necessary qualifications, were permitted to exercise the elective franchise. To deny to them the right of suing and being sued, would be in point of fact to deprive them of the means of defending their possessions, and this, too, without subserving any good purpose to the rest of the community. Neither the policy of our law, nor the well-being of this part of our population, demands the principle of exclusion contended for by the appellant, on the contrary, they are both opposed to it, and [**27]  so long as free negroes remain in our midst a wholesome system induces incentives to thrift and respectability, and none more effective could be suggested than the protection of their earnings. The words, free negro, are not essential in the averments of the pleadings except in the case of a petition for freedom; in all others the word "negro" is sufficiently full in its description; it notifies the adversary party of the fact of color, and thus affords him an opportunity to show the condition of slavery, if such be the case, by pleading that disability.
Judgment affirmed. 

18 of 18 DOCUMENTS 

FARMERS AND MECHANICS BANK OF CARROLL COUNTY, AND JACOB MATHIAS, vs. BURGESS NELSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 35; 1858 Md. LEXIS 5 

June 2, 1858, Decided 

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

The bill in this case was filed by the appellee, on the 2nd of April 1853, against the appellants, for the specific performance of an alleged contract of subscription for stock in the Farmers and Mechanics Bank of Carroll county, and for an account of the arrears of dividends thereon, and to compel Mathias to pay over the proceeds of a certain single bill to the bank, in payment of said stock, and the balance, if any, with interest, to the complainant.

The bill alleges, that on the 14th of October 1850, the bank, by its president and directors, opened books, in Westminster, for subscription of stock therein, a certain portion of its shares, exceeding two hundred, then and still remaining unsubscribed for; that complainant then and there subscribed for one hundred shares of stock, the books for subscription being then open, under the special superintendence of Mathias, the then and still president of the bank, and J. L. Warfield, then and still one of the directors thereof, as the agents of the bank, duly authorised to receive subscriptions for stock as aforesaid; that the transaction of said subscription [**2]  was as follows: In the first place, complainant proposed to said Mathias and Warfield, in their capacity of agents for the bank, as aforesaid, to subscribe for one hundred shares of stock, provided they, as agents of the bank, and provided the bank, through and by them, as agents, would undertake to raise the money for said stock on a note, under seal, the complainant then held against Ward & Stocksdale, in favor of complainant, for $ 1000, bearing interest from the 1st of April 1848, dated the 10th of October 1847, and payable the 1st of April 1850. To this proposition Mathias and Warfield, as agents as aforesaid of the bank, and the bank, by its said agents, then and there agreed, and complainant then and there, in compliance with this agreement thus made in writing, which writing is now in possession of the bank, and which it is prayed the bank may be required to produce, subscribed for one hundred shares of stock in said bank, and after said subscription was made, complainant handed to Mathias the aforementioned sealed note, and took a receipt for the same. The bill further alleges, that subsequently complainant received several letters from Mathias, which are filed as exhibits,  [**3]  in which the aforesaid agreement is not only recognised and acknowledged, but the precise terms thereof fully set forth, and, in one of them, Mathias acknowledges that, previous to the 7th of November 1850, he received $ 60 on the aforesaid note, and placed the same to complainant's said subscription for stock on the books of the bank. It also alleges, that previous to the 5th of June 1851, the whole of said note was paid to Mathias, who has since been requested, by complainant, to appropriate the same to the payment of $ 10 per share on the stock so as aforesaid subscribed for, that sum being all that the bank has called for on its shares, but that he refuses so to do, and the bank also denies that complainant is, or ever was, a stockholder therein, and refuses to issue to him the usual certificate of stock, and make the usual entries on its books.

The provisions of the charter of the bank, (act of 1849, ch. 268, passed the 27th of February 1850,) so far as necessary to be stated, are as follows: The first section provides that the capital stock shall consist of 12,000 shares, of $ 25 each. The second enacts, that subscription books shall be opened, in Westminster and Uniontown,  [**4]  for 6000 shares in each place, under the direction of certain named commissioners, (Jacob Mathias being one, but not Warfield,) "or any three or more of them, on the first Monday of May next, and remain open for two days." The third provides, "that every subscriber shall pay to the commissioner, at the time of subscribing, the sum of two dollars and a half, in specie, on each share subscribed for, and the further sum of two dollars and a half, in specie, in sixty days thereafter, and the remaining twenty dollars on each share, to be paid at the said bank, as the board of directors may call for." By the fourth section, any stockholder who fails to pay his instalment of $ 2.50, as above directed, forfeits, for the use of the company, all moneys paid by him antecedent to such failure. The fifth section provides, that the affairs of the bank shall be conducted by a president and ten directors, and that the directors shall be chosen by the stockholders, on the first Monday in June 1850, at Westminster, and yearly thereafter. The eighth section gives power to the board of directors to appoint a president and other officers, and also "to purchase, lease, rent or erect a proper building, in [**5]  Westminster, for said bank, at the expense of the company." The ninth section forbids the bank to "deal or trade in any thing except bills of exchange, promissory notes, United States' stock, stock of the chartered banks, bullion, or the produce of their lands, or of such goods and effects as shall have been pledged or mortgaged to it by way of security, or conveyed to it in satisfaction of debts contracted in the course of its dealing, or purchased at sales upon judgments which shall have been obtained for such debts." The sixteenth section enacts, "that all persons who shall become subscribers to the said bank, their successors and assigns, shall be and are hereby made a corporation and body politic, by the name and style of the Farmers and Mechanics Bank of Carroll county, and by that name shall be and are hereby made able and capable, in law, to sue and be sued," &c., "to make and have a common seal," &c., "to make, issue and negotiate notes, and generally to do and execute such acts, matters and things as to them shall appertain, under the clauses of this act." By the eighteenth section it is enacted, "that upon the payment, as hereinbefore provided, of the first and second instalment,  [**6]  in gold and silver coin, the president and directors may commence the operations of the bank, the facts of such payments having been so made, in gold and silver coin, having been first certified to the Treasurer of the State, by such person or persons as he may, upon request of the said president and directors, appoint to examine into, ascertain and report the said facts, but said bank shall not go into operation until said payments, in gold and silver coin, shall amount to $ 30,000, and such shares as remain unsubscribed for, the president and directors shall dispose of in such manner as they may deem most beneficial to the bank."

The answer of the bank, under its corporate seal, avers that it was to go into operation as a bank so soon as the provisions of the eighteenth section of its charter was complied with, and not before, and that these provisions were not fully complied with until after the 25th of January 1851, and the bank did not go into actual operation until after that day; that on the 15th of October 1850, the day that Mathias gave the receipt to complainant for the note or single bill for $ 1000, for collection, the bank had not gone into operation as a bank, and [**7]  had no power whatever to transact business as a corporation. It denies that Mathias and Warfield, or either of them, ever were appointed agents for the bank, to dispose of the shares of the stock unsubscribed for, as alleged in the bill. It also positively denies that the complainant ever did subscribe for one hundred or any other number of shares of stock in said bank, and pay for the same, in conformity with the third and fourth sections of its charter, and insists that if Warfield and Mathias, or either of them, ever did make any such contract as that stated in the bill, it is utterly null and void, as in direct violation of the several provisions of said charter. It further denies that Mathias and Warfield, as agents of the bank, ever made such a contract, or that any such contract, in writing, is or ever was in the bank, or the possession of its officers, or that the president and directors ever, in any way, authorised Mathias, as agent, to make any such contract with complainant, or any one else, and if, in fact, he made any such contract, he must have made it as an individual, and on his own account.

The answer of Mathias sets up the same defences as to the time the bank [**8]  went into operation, and as to its power to transact business or make contracts by its president and directors, on the 14th of October 1850. It denies that he, as agent for the bank, ever made any such contract with complainant as that stated in the bill, or that he was ever appointed agent by the bank, to sell and dispose of the shares of stock remaining unsubscribed for at the time the bank went into operation, and avers he never had authority to sell and dispose of any shares of stock, except as one of the commissioners appointed by the second section of the charter, to open books and receive subscriptions, in strict accordance with the provisions thereof. He further states, that he received the note or single bill from the complainant to collect, as agent of the complainant, and not of the bank; that he acted as an individual, and the bank has no concern in the matter, and that he had no authority to act as president of the bank at the time he received the same for collection. He also denies that the complainant ever did subscribe for one hundred shares of stock on the books of the bank, and pay for the same, according to the provisions of the charter, or in any other way. He admits [**9]  that, at the time he received this note or single bill for collection, he was anxious that complainant should become a subscriber for one hundred shares of stock in the bank, and to facilitate the collection of the money thereon, agreed to take it for collection, as agent of the complainant, and if the money could be collected before the bank went into actual operation as a corparation, respondent fully intended to have procured the subscription of the complainant for one hundred shares of stock, and to have applied $ 1000 of the money in payment therefor, but he was unable to collect the money until about the 21st of May 1851, long after the bank went into operation, and when it was impossible to obtain any shares of stock therein, as the books for subscriptions were closed by the commissioners. The answer further states, that as soon as respondent collected the money, he apprised complainant of it, and offered to pay him the same, and has always since been ready and willing so to do.

The proof, on the part of the complainant, shows that, agreeably to the charter, the stockholders met, at Westminster, on the 3rd of June 1850, and elected ten directors, Mathias and Warfield being [**10]  two of them, and that the directors met on the 10th of the same month, and chose Mathias president, and that on the 10th of August following, the board of directors met, Warfield being present, and passed the following resolution:

"Resolved, that on Monday and Tuesday, the 14th and 15th days of October, the books for the further subscription of stock to the bank be opened in Westminster and in Uniontown, under the direction of Jacob Mathias and J. L. Warfield, or either of them, at Westminster, and John Roberts and Jno. Smith, of J., or either of them, at Uniontown, and that five dollars be required on each share, at the time of subscribing. Resolved, that the foregoing resolution be published in the Carrolltonian and Democrat, county papers; that the president is hereby authorised to announce, in connection with the publication of the foregoing resolution, that the bank will go into operation immediately after the first day of January 1851."

In pursuance of this resolution, the publication in the papers was made, headed "Bank Notice," and signed by "Jacob Mathias, President." The complainant's name appears, with others, as a subscriber for one hundred shares of stock, as [**11]  of the 14th of October 1850, in a book, (Exhibit S. B.,) which purports to be a subscription book for stock in the bank, and which the cashier of the bank proves was handed to him by Mathias, "and is a list of a part of the stockholders." It was admitted that this list was twice copied into another book in the possession of the bank, and in each place the name of Burgess Nelson, the complainant, in the handwriting of Mathias, appears, with the others, as a subscriber for one hundred shares of stock. On the 19th of April 1851, the board of directors passed a resolution declaring the books for subscription closed, but authorising the president and directors, at their discretion, to dispose of shares of stock, not exceeding five thousand, to such persons as they deem proper.

It was admitted that all the prerequisites of the charter, as conditions precedent to the bank's going into operation, were fully complied with, previous to the 27th of January 1851, and that the bank did, in fact, go into operation, within the meaning of the 18th section of its charter, on that day, and that the number of shares subscribed for at the date of this admission, exclusive of those in controversy [**12]  in this case, amount to six thousand six hundred. The complainant also offered in evidence a receipt signed by Mathias, dated the 14th of October 1850, acknowledging that he had received the note or single bill of Ward & Stocksdale, for $ 1000, from the complainant, "for collection," and also the two following letters from Mathias to him, which were also filed as exhibits with the bill:

"WESTMINSTER, 7th November, 1850.

BURGESS NELSON, Esqr.

My Dear Sir:--A few days after you left your note with me, I addressed a letter to Mr. Ward, but heard nothing from him until yesterday, when he came, and I am sorry to say that things look rather unfavorably. He says he can't pay the money before next spring, and if your object was to pay your bank stock out of the proceeds of this note, it will produce some disappointment, because we certainly counted on getting this money. Mr. Ward paid me sixty dollars on the note, for interest, which I placed to the credit of your stock, on the books of the bank. He did not appear to be willing to give his note for the balance of the interest, but said he thought he could pay it between now and the first of January. You will be so good as to [**13]  inform me what order you will take in this matter.

Very respectfully yours, &c.,

JACOB MATHIAS."

"WESTMINSTER, 29th November 1850.

BURGESS NELSON, Esqr.

Dear Sir:--I received your letter of the 23rd instant, and am truly sorry to find that you came to the conclusion, after reading my letter, that there was some misunderstanding about your subscription for bank stock. I think, after you will have read this letter, you will not think so, for the transaction was a very simple and a very fair one. I will state it as I understood it: In the first place, you proposed to subscribe for one hundred shares of stock, and handed me a note against Ward & Stocksdale, drawn for $ 1000, with considerable interest thereon, with the positive understanding that we were to collect the money due on the note, and apply $ 1000 towards the payment of your stock in the bank, and the balance to be paid to you. Now, sir, if my letter to you was calculated to convey any other meaning, I did not intend that it should do so, and if the money is not paid just at the time the bank is put in operation, why we must only wait until it is paid, and you can lose nothing by it, for your note will [**14]  be going on interest. I am very sorry to find, in the concluding part of your letter, that you speak of having no other means to resort to. Why, my dear sir, nobody dreamed that you should resort to any other means, and I do hope and trust that you will make yourself perfectly easy about this matter, for I am sure all will be right, and when this money is collected, it shall be honestly and faithfully applied according to agreement, and every cent that may be due you, after paying for your stock, shall be paid to you, without one cent of charge. I again say, I am too sorry to think that this transaction should have given you a moment's uneasiness, for I am sure all will be right, and I shall, at all times, take pleasure in apprising you of any movement in this matter.

I am, sir, very respectfully, your ob't servant,

JACOB MATHIAS."

Jacob Reese, the cashier, the only witness examined in the case, proves, in addition to what has already been stated, that he does not know whether the subscribers, before the commissioners appointed by the charter, paid in specie or in paper; deponent did not pay for his stock until the day the money was counted, the last Saturday in January [**15]  1851; a large portion of the cash payments for stock was in bank notes, and a large portion in gold and silver, and all of it was taken to Baltimore, before the bank went into operation, and invested, and when wanted, was drawn and brought to Westminster, and counted; deponent believes the note of Ward & Stocksdale, for $ 1000, would have been good in Carroll county, on the 14th of October 1850, though he would not have advised the bank to discount it, because he considered them slow pay. On cross-examination, this witness proves, that, as cashier, he is the keeper of the books and records of the bank, and that there is nothing in said books and records showing that Jacob Mathias and J. L. Warfield were authorised by the bank to make any such contract as set forth in the bill of complaint in this cause; that Burgess Nelson's name appears upon the memorandum book, S. B., but we have in the bank a correct list of stockholders, in which the name of Burgess Nelson does not appear as a stockholder, and never has appeared as a stockholder in said bank, and he has never, nor has any one else for him, paid any money for stock in said bank, as appears by the books, or to deponent's knowledge.  [**16]  

The court below (NELSON, J.,) passed a decree declaring the agreement set out in the bill a valid one, and decreeing its specific performance as against the bank, and referred the case to the auditor, for an account of the dividends, and also directed Mathias to account for the principal and interest which he has received on the note, and to pay the balance over to the complainant. From this decree the defendants appealed.  

DISPOSITION:
Decree reversed and bill dismissed, each party to pay his own costs.  

HEADNOTES:

The board of directors of a bank passed a resolution directing the books for further subscription of stock to the bank to be opened, under the direction of M. and W., "or either of them, and that five dollars be required on each share, at the time of subscribing." N. proposed to subscribe for one hundred shares of stock, provided M. would undertake to raise the money therefor, upon a note for $ 1000, he then held against certain parties, and not then due. To this proposition M. agreed, and, in accordance with this agreement, the subscription was made. HELD:

That, in taking the subscription in this manner, M. exceeded the authority conferred upon him by the resolution, and there being no proof that his act was ever ratified by the bank, N. is not entitled to a decree, compelling the bank to recognise him as a stockholder. 

COUNSEL:
Joseph M. Palmer for the appellants, argued:

1st. That the court below most manifestly erred in passing a decree for the specific execution of the contract set forth in the bill in this case; for it is an admitted principle in all cases or contracts, both in a court of law and equity, that the allegata and probata must agree. The contract alleged in the bill, must be admitted by the answers, or proved by the complainant as alleged, before a specific execution can be decreed. 3 G. & J., 153, Hoye vs. Brewer. 4 Md. Rep., 459, Murndorff vs. Kilbourn. 5 Md. Rep., 18, Stoddert vs. Bowie. The answers in this case, so far from admitting, deny most positively the written contract, or any [**17]  other contract, like the one set forth in the bill. The respondents were called upon to answer the bill, the bank under its corporate seal, and Mathias under oath. The answers both deny the agency and the contract, as charged in the bill, and also that the complainant ever did make a contract with the bank, either in writing or by parol, by its agents or otherwise, in relation to the subscription for shares of stock in the bank, and it is a principle not to be successfully questioned, that the force of an answer responsive to the bill, can only be overcome or avoided by the contradictory testimony of two witnesses, or by the testimony of one, supported by pregnant circumstances. 4 Md. Rep., 36, West vs. Flannagan. The complainant offered but one witness to sustain the allegations of his bill, the cashier of the bank, whose testimony tends strongly to negative every allegation in it. Indeed, there is not a particle of evidence in the record to overcome the denials of the answers, and there is nothing, therefore, upon which the decree of the court can be sustained--nothing upon which it can rest with legal security.

2nd. But admitting, for the sake of the argument, that Mathias [**18]  and Warfield, as agents of the bank, did make the agreement, as charged in the bill. Such an agreement was utterly null and void, under the provisions of the third, ninth and eighteenth sections of the bank charter. The bank, as a chartered institution, could not be bound by any such contract. The bank, as a corporation, had no existence until long after the making of the pretended contract. The corporation, it is presumed, could hardly make a binding contract before it had a legal existence--before it went into operation, by virtue of the 18th section of its charter. A contract like this, in relation to bartering away shares of its stock for bonds or single bills, is expressly prohibited by the 3rd and 9th sections of the charter. But, besides this, the resolution of the 10th of August 1850, in relation to the opening of books of subscription, required, by its terms, five dollars to be paid on each share at the time of subscribing, and neither Mathias nor Warfield had power to exceed to this authority, by making such a contract as this, and without the sanction or subsequent ratification of the bank, of which there is no evidence, it could not bind the corporation.

Oliver Miller [**19]  and Wm. P. Maulsby for the appellee:

1st. The first question arising in the case is, whether the contract set out in the bill is sufficiently proved as against the denials of the answers, to authorise a decree for its specific execution. That the contract was, in fact, made between Mathias and the complainant, no one who reads the letters of the former, filed as exhibits with the bill, can, for a moment, doubt. But it is said, that the denials of the answers can only be overcome by the testimony of two witnesses, or of one, with pregnant circumstances. The answer of the bank does not put the complainant to this proof, for, being the answer of a corporation, under its corporate seal, it has no other effect as evidence than the answer of an individual not under oath. 8 Gill, 170, Md. & N. Y. Coal Co., vs. Wingert. The answer of Mathias, however, is under oath, and conceding that its denials operate as evidence in favor of his co-defendant, the bank, we still insist that the rule of evidence referred to does not apply to this case. The rule of evidence, that the responsive denials of the answer can only be overcome by the testimony of two witnesses, or of one, with pregnant circumstances,  [**20]  is not one of universal application. The rule applies to cases in which the facts denied depend on oral testimony, or oral and circumstantial evidence, and not to cases where the facts are conclusively proved by the production of the written contract of the parties, or where the defendant has written letters, which are exhibited with the bill, stating the contract, and admits these letters to be genuine, though in his answer he denies the contract. The case of Jones vs. Belt, 2 Gill, 106, fully sustains this view of the rule in question. The letters of Mathias, exhibited with the bill, and proved under the commission, conclusively establish the contract in the precise terms in which it is charged in the bill. It may also be remarked, that the answers are evasive, and are filled with conclusions of law, as to the effect and construction of the bank charter, rather than direct and positive denials.

2nd. Assuming, then, that the contract is sufficiently proved, the next question is, whether it is binding upon the bank? First, it is said the bank did not become a corporation, and had no power to make a contract, until the 27th of January 1851, when the provisions of the 18th section [**21]  of its charter were complied with. The answer to this objection is, that though they could not make discounts and issue notes until $ 30,000, in gold and silver, were paid in, as provided for in this 18th section of their charter, they could yet do every other act and make every other contract which the charter contemplates, as soon as they accepted that charter, and this acceptance was made on the first Monday in June 1850, as is evidenced by the then subscribers to the stock meeting and electing a board of directors and president. They then became a corporation, a body politic, by virtue of the 16th section of the charter, capable of making contracts, and of suing and being sued. They could elect officers, dispose of the unsubscribed for shares of stock, so as to complete the organization of the bank for banking purposes, and make contracts for the "purchase, lease, renting or erecting" a banking house, under the 8th section of the charter; in short, they could do any act, save those of discounting and issuing notes. Angel & Ames on Corp., 69, 70. Again, it is said this contract violates the third section of the charter, which requires the payment on each share of $ 2.50 in specie,  [**22]  at the time of subscribing. But, by the terms of this section, this restriction or requirement applies only to subscriptions taken before the commissioners appointed by the 2nd section. These commissioners had power to act only for two days, the first Monday and Tuesday in June 1850. Their powers then ceased, and all stock not subscribed for then, could only be disposed of under the last clause of the 18th section, which authorises the president and directors to sell and dispose of the shares remaining unsubscribed for "in such manner as they may deem most beneficial to the bank," not requiring the payment of any amount whatever in specie. It was under this clause alone that the board of directors had power to pass the resolution of the 10th of August, authorising the books for further subscriptions to be opened on the 14th of October following, and it was under this clause and resolution that the subscription in controversy was made. It is, therefore, free from the restriction of specie payment, contained in the third section. It is true, this resolution requires the payment of five dollars, but not in specie, at the time of subscribing, and it is contended that taking the note in [**23]  payment, was an excess of power on the part of the agents appointed by this resolution. It must be observed, in considering this objection, that the resolution does not require payment in specie, or, indeed, in money, and having paid what the agents agreed to receive in payment, having satisfied them by paying something else, which the agents agreed to receive as an equivalent for payment in money, the bank cannot be heard in a court of equity to set up this defence. 1 Md. Ch. Dec., 395, Elysville Manf. Co. vs. Okisko Co. But even if it was an excess of power, it is still submitted that the bank had notice of it, and impliedly ratified the act. Mathias, one of these agents, was the then president of the bank, and Warfield, the other, one of its directors. The name of Nelson, as a subscriber, appears no less than three times upon the books of the bank, and Mathias says, in his letter, that $ 60 of the money received as interest on the note, was placed to the credit of this subscription for stock on the books of the bank, and there is nothing to show that the bank ever disavowed the act, until after it had commenced to declare its dividends, which was long after the whole $ 1000 had [**24]  been received by Mathias on the note.

It is submitted, therefore, that the case is fully made out, and as there is no technical difficulty in the way of compelling a specific performance, it being admitted that there are over five thousand shares of stock still undisposed of by the bank, that the decree should be affirmed.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*53contd]  

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ECCLESTON, J., delivered the opinion of this court.
We are of opinion that the complainant in this case is not entitled to the relief which he seeks. Were it conceded that the corporation had the right to pass the resolutions of the 10th 

 [*54]  of August 1850, authorizing Messrs. Mathias and Warfield, or either of them, to receive additional subscriptions, in taking that of the complainant in the manner they did, they exceeded the authority conferred upon them, and there is no proof their act was ever ratified by the bank.
Decree reversed  [**25]   and bill dismissed, each party to pay his own costs. 

DISSENTBY:
LE GRAND 

DISSENT:

 [*48contd]  
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LE GRAND, C. J., delivered the following dissenting opinion:
The bill filed in this case had for its purpose the passage of a decree compelling the Farmers and Mechanics Bank of Carroll county to make the usual entries on its books, that the complainant was a stockholder of one hundred shares of stock in said bank, and to issue to the complainant the usual certificate to that effect, and to set forth an account of the arrears of dividends on said stock, and to pay said arrears to complainant, and that the defendant, Mathias, be decreed to pay over the proceeds of a certain single bill to the bank, in payment of said stock, and to pay over the balance, if any, together with all just and equitable interest, to the complainant, &c.
The theory of the bill is, that the complainant became a subscriber to the capital stock of the Farmers and Mechanics Bank of Carroll county, to the amount of one hundred shares,  [**26]  and that this subscription was made through the agency of the defendant, Mathias, the then president of the bank, and Jesse L. Warfield, then one of the directors thereof. The bill states the transaction of the alleged subscription to have been as follows: The complainant proposed to the said Mathias and Warfield, in their capacity of agents to the said bank, to subscribe for one hundred shares of stock, provided Mathias and Warfield, as agents of the bank, and provided the bank, through and by their said agents, would undertake to raise the money for said stock on a note the complainant then held against Jno. T. Ward and Solomon Stocksdale, under seal, in favor of complainant, for $ 1000, bearing interest from the first day of April 1848, bearing date the 10th day of October 1847, and payable the 1st day of April 1850; that Mathias and Warfield, as agents 

 [*49]  of the bank, and the bank, by their said agents, agreed to this proposition, and, in compliance with this agreement, the subscription was made. The bank answered the bill, denying that the complainant was a subscriber, averring that the bank did not go into operation as a bank, with banking powers, until after the 25th [**27]  day of January 1851; and, also, that Warfield and Mathias "never were, neither was either of them, appointed agents for the defendant, to dispose of the shares of stock unsubscribed for, as alleged by the complainant, in his said bill of complaint; but this defendant admits that the said Jesse D. Warfield and Jacob Mathias were commissioners appointed under and by virtue of the second section of said charter, with power, together with others, to open books of subscription for six thousand shares of stock in said bank, and that they, together with others, did open books of subscription at sundry times and places, as provided for in said second section of said charter, but this defendant positively denies that the said complainant, Burgess Nelson, ever did subscribe for one hundred shares of stock in said bank, or any other number of shares, and pay for the same in conformity with the third and fourth sections of said bank charter." The answer then proceeds to state several legal conclusions drawn from its construction of the provision of its charter, and then denies that it ever "in any way authorized Jacob Mathias, as agent, to make any contract or agreement with the complainant, or [**28]  any one else, like the one set forth and charged in the bill."
The defendant, Mathias, denies positively that he ever made, as agent of the bank, any such contract as that set out in the bill of complaint, and also that the complainant is a stockholder in the bank.
These denials are sufficiently full to put the complainant to the proof of his case.
The answer of the bank, under its corporate seal, establishes nothing more than a denial of the allegations of the bill, it being only equivalent to the answer of an individual, not sworn to. 8 Gill 170, Md. & N. Y. Coal Co., vs. Wingert. The answer of Mathias, although it emphatically denies the agreement and subscription alleged in the bill, is not such a denial, 

 [*50]  under the circumstances of this case, as to require two witnesses, or one, with strong pregnant circumstances, to overcome it. Although the rule, in the general, appertains to the denial of the defendant, there is, nevertheless, a class of cases wherein it is not observed, and this, in my judgment, is such a one.
In the case of Jones vs. Belt, 2 Gill 106, the court held, that where a complainant alleged the existence of [**29]  a contract with the defendant, accompanied with collateral circumstances, and called upon him not to state what the contract was, but to admit or deny the existence of the agreement and circumstances set forth, and the defendant, in his answer, averred another agreement, and denied the collateral circumstances, the statement of the agreement by the defendant in such case is not simply responsive to the contract he was called on to admit or deny. It is not such a denial as requires two witnesses, or one, with concurring circumstances, to disapprove it; nor, in this case, was it necessary to disprove the denial of the collateral circumstances by the same amount of proof. And although, as was decided in Powles, et al., vs. Dilley, 9 Gill 222, where a complainant calls upon a defendant to answer, he makes the latter a witness, and so far as the answer is responsive to the bill, it must be received against the complainant, and it cannot be excluded, because there is a co-defendant in whose favor it may and does consequentially operate; yet, in a case like this, the principle recognized in Jones vs. Belt, 2 Gill 106, is not affected, but remains [**30]  in full force. Here the answer of the bank merely puts the complainant to the proof of his case; and although the answer of the defendant, Mathias, under oath, is, so far as it is responsive to the bill, available to the bank, yet it is liable to be contradicted by proof of the contract, which proof may consist solely of its production and identification.
Keeping these principles in view, we are to inquire--1st, whether there was such a contract as that sought to be enforced? and 2nd, whether it was such a contract as it was competent to the bank to make, in the manner and under the circumstances detailed? These questions are to be answered 

 [*51]  by the evidence in the cause, and the terms of the act of incorporation.
There is no doubt that, to entitle a party to a decree for specific performance, his proof must correspond to the contract alleged. What, then, is the contract alleged in this case? It is, in substance, this: the complainant claims to be a subscriber to the capital stock of the bank, to the amount of one hundred shares, and that he made that subscription under the superintendence of the authorized agents of the bank, and that he made the stipulated payments by [**31]  handing to one of those agents a single bill, which he agreed to collect and appropriate accordingly, and that he was returned as a subscriber to the number of one hundred shares. This contract is denied by the defendant, Mathias, and the question is, is the contract alleged by the complainant made out by the proof? I think it is.
I assume, for the present, that Mathias was the agent of the bank, and, if so, his acts, within the line of his agency, bind the bank. In his letter of the 20th of November 1850, addressed to the complainant, he says: "You (the complainant) then subscribed for one hundred shares of stock, and handed me a note against Ward and Stocksdale, drawn for $ 1000, with considerable interest thereon, with the positive understanding that we were to collect the money due on the note, and apply $ 1000 towards the payment of your stock in the bank, and the balance paid to you." Again, in the same letter, in allusion to some apprehension expressed by the complainant, he says: "I do hope and trust that you will make yourself perfectly easy about this matter, for I am sure all will be right, and when this money is collected, it shall be honestly and faithfully  [**32]   applied, according to agreement, and every cent that may be due you, after paying for your stock, shall be paid to you, without one cent of charge."
Jacob Reese testifies that exhibit S. B. was handed to him by the defendant, Mathias, and, by it, it appears Burgess Nelson is a subscriber to the amount of one hundred shares. It also appears, by the testimony of Mr. Reese, that in a book belonging to the bank, it appears, in the handwriting of Mr. Mathias, that Mr. Nelson, the complainant, was a subscriber 

 [*52]  for one hundred shares. If these acts were a legitimate exercise of authority on the part of Mr. Mathias, then it is clear Nelson was a subscriber.
By the minutes of proceedings of the bank, it appears that, on the 10th day of August 1850, the books for the further subscription of stock to the bank were authorized to be opened in Westminster and in Uniontown, under the direction of Jacob Mathias and J. L. Warfield, or either of them, at Westminster, &c.
It is under this resolution the complainant claims he has a right to regard Mathias as the agent of the bank to take subscriptions, and I think he is correct in his opinion. The 18th section of the act of incorporation [**33]  expressly provides, that if there shall be any of the shares of the stock undisposed of and "unsubscribed for, the president and directors shall dispose of the same in such manner as they may deem most beneficial for the bank." The authority given to commissioners, by the second section of the act, to receive subscriptions, has nothing to do with the case. The power conferred by it was to be exercised in the month of May 1850, and to exhaust itself in two days, the language being, they were to receive subscriptions "on the first Monday of May next, and remain open for two days." And, in the case of Plank Road Co. vs. Hoffman, 9 Md. 559, this court said: "Commissioners are appointed to receive subscriptions to stock for the purpose of giving the subscribers a right to organize as a corporation under a charter. So soon, however, as the organization takes place, the authority of the commissioners ceases, and all corporate powers conferred by the charter, vest in the body politic. Such, at least, is the general rule applying in every case where there is no special provision to the contrary." It appears, by the agreement signed by the counsel for the complainant,  [**34]  and Mathias, as president of the bank, "that all the requisites of the charter, as conditions precedent to the bank's going into operation, and the president and directors commencing operations of the bank, were fully complied with previous to the 27th day of January 1851; and that the bank did, in fact, go into operation, within the meaning of the 18th section of the charter, on that day." 

 [*53]  It is contended by the defendants, that until after the 27th day of January 1851, the bank had no right to do any business, whatever, under its charter. This is obviously error. What is meant by the requirements of the 18th section, in this regard, is, that the corporation shall not be permitted to avail itself of the franchise of banking, in the manner pointed out by its charter, until it shall have first complied with them. It had, as a corporation, full power to do all acts preliminarily necessary to put the bank in operation, such as receiving subscriptions, providing suitable buildings, &c. It is to be presumed that when the Legislature passed the act of incorporation, it designed the bank should go into operation. Now, by the second section of the act, the commissioners therein [**35]  designated had but two days allotted to them wherein to receive subscriptions, and, if the view advanced on behalf of the defendants were tenable, and the necessary amount of stock was not subscribed within those two days, the act would, in point of fact, be of no avail. The 18th section guards against such a state of things from mere abundance of caution, giving to the corporation the power to dispose of the unsubscribed shares "in such manner as they may deem most beneficial for the bank." This power the corporation rightfully exercised in the passage of its resolution of the 10th of August 1851, and, inasmuch as it constituted the defendant, Mathias, its agent to receive subscriptions, his acts, in this regard, bind it.
I think, with all deference to others, that no one who reads the record in this case, ought to have a doubt that it was understood between Mathias and Nelson that he was a subscriber for one hundred shares. Indeed, the defence set up to the claim of the complainant is principally, if not entirely, technical. I discover no equity whatever in it, and, believing the complainant to have made out his case fully, am of opinion that the decree of the Circuit Court [**36]  should be affirmed.